The Planning Board for the City of Marlborough met on Monday, August 27, 2012 in Memorial Hall, 3rd Floor, City Hall 140 Main Street, Marlborough, MA 01752. Members present: Barbara Fenby, Colleen Hughes, Sean Fay, Philip Hodge, Edward Coveney and Clyde Johnson. Also present: City Engineer Thomas Cullen.
MINUTES
July 23, 2012
On a motion by Ms. Hughes, seconded by Mr. Johnson it was duly voted:
To accept and file the meeting minutes with minor amendments.
CHAIRS BUSINESS
93 Framingham Road
City Solicitor Correspondence
The City Solicitor sent correspondence to the City Council regarding the open space application for the development of land shown on Parcels 87, 93 and 94 of Assessors Map 93. He explained the developer is seeking a portion of the City’s fee interest in Parcel 93A for sewer purposes and passive recreation. The DPW Commissioner also wrote a letter to the City Council explaining that the City’s fee interest in the portion taking is no longer required for public use, as long as the City retains a permanent municipal easement for sewer and passive recreation.
On a motion by Ms. Hughes, seconded by Mr. Johnson, it was duly voted:
To accept and file correspondence.
On a motion by Mr. Fay, seconded by Mr. Hodge, it was duly voted:
To move up agenda items 5c, 5d and 5e on the current agenda.
APPROVAL NOT REQUIRED PLAN
East Dudley Street
Submittal & Decision
Mr. Frias of Hancock Associates presented the plan of 46 East Dudley Street. He explained that the owner was looking to move their lot lines since the existing house in on the property line. He explained that the new parcel would not be a buildable lot.
The ANR was reviewed by the City Engineer at the Chairs directive due to the summer schedule conflicts. The City Engineer has fully reviewed the ANR plan known as “Plan of Land in Marlborough”, MA #46 East Dudley St, dated August 15, 2012 he can favorably recommend to the Planning Board to endorse this plan.
On a motion by Mr. Coveney, seconded by Mr. Hodge it was duly voted:
To accept and endorse a plan of land believed to be Approval Not Required of Plan of Land in Marlborough, MA owned by Thomas J. Boule of East Dudley Street, Marlborough, MA 01752. Name of Land Surveyor: Carlos Frias, Hancock Associates, 315 Elm Street, Marlborough, MA 01752. Deed of property recorded in Middlesex South Registry of Deeds Book 58203, Page 147: Assessors Map 67 Lot 4-A and Parcel B.
Slocumb Lane
Submittal
The developers are looking to create another lot within in the subdivision. They are also asking for a time extension for the approval.
On a motion by Mr. Fay, seconded by Mr. Coveney it was duly voted:
To accept and file correspondence, to extend the time consideration until September 11, 2012, and to send the plan for review to the City Engineer.
PUBLIC HEARING
SUBDIVISION PROGRESS REPORTS
City Engineer Update
Mr. Cullen provided a new subdivision status report. He stated that the construction season is winding down; however they are still in discussions with several developers in completing the as-builds for several subdivisions.
Blackhorse Farms
Correspondence from Attorney Roelofs
Attorney Roelofs is writing on behalf of the developer. Mr. Roelofs stated his position that the Board does not have the authority to pull the bond for the subdivision. He provided a brief history of the subdivision and suggested there is no binding construction deadline for the completion of the subdivision.~ He also stated his position that the Board was prohibited from taking action on the bond because of the 2010 Permit Extension Act as expanded by the Massachusetts Legislature though the 2012 Jobs Bill.~ Mr. Roelof's believes there is no binding construction deadline and even if there was one, the Permit Extension Act, would automatically extend the most recent deadline.~
On a motion by Mr. Johnson, seconded by Mr. Coveney it was duly voted:
To accept and file correspondence.
Mr. Fay posed several questions to the City Solicitor. Mr. Fay asked if the legislation cited by Attorney Roelofs prohibited the Board from pursuing enforcement actions. He also asked whether the legislation cited relieved a developer from all obligations related to a subdivision. Mr. Rider stated that any enforcement action would be independent from the Job Bill.~ Mr. Fay also asked whether the documentation submitted in connection with an extension request could be relied upon to establish deadlines for a developer and whether the developer's disregard of the deadlines that they offered are tied to the performance bond. Mr. Fay also asked whether there is any reasonable interpretation of the law related to performance bonds that would relieve a developer of any obligation to perform whatsoever. Mr. Rider suggested that
he would have to review the questions in more detail but that his initial reaction was that it is unlikely that the intent of the cited legislation was to relieve the developer of all obligations under a performance bond.
After some discussion from the members, the Chair asked the Board how they would like to proceed.
Mr. Howard Fafard, the developer, and James McLoughlin of Benchmark Engineering were both in attendance and asked to address the Board. Mr. Fafard stated that unfortunately not all the reports from the previous meetings were relayed to him. He stated that they have removed the gate as of Friday, that they have started the process of trimming the weeds and removing some debris.
Mr. McLoughlin stated that back in 2004 when the developer purchased this subdivision from the City of Marlborough, they had met for a pre-construction meeting and all modifications were done at that time as was the bond establishment. During 2004 and 2006 the roadway was completed with the utilities, however there was no response from potential buyers in their marketing efforts to sale the lots.
Ms. Hughes expressed her displeasure with how long it has taken to get simple tasks completed. Mr. Fay explained to Mr. Fafard the reason that the Members are not pleased with the progress of this subdivision is due to the representations of his representatives that turned out not to be true or that were disregarded. Mr. Fay stated that there were several conditions imposed as part of the prior extension that was approved by the Board in good faith based on the representations made by his representative and the completion schedule that accompanied that request. Among those conditions were the removal of the gate, maintenance and plowing of the roadway, debris removal, and bi-monthly status reports. Mr. Fay stated that none of those obligation on the part of the developer were met. Mr. Fafard stated that he was not aware
and asked for a realistic compromise that everyone could agree on.
Councilor Delano was in attendance and commented about his prior interaction with Mr. Fafard. Councilor Delano stated that in his one direct meeting with Mr. Fafard he told Councilor Delano that he would correct problems which residents believed he was responsible for due to their close proximity to his blasting, and that when he eventually sent people out to examine the problems, Mr. Fafard denied responsibility and did nothing to help the neighbors. Mr. Delano also stated that Mr. Fafard had not been a good neighbor, that anything that the Fafard Company has done to improve the situation for neighbors, or to keep commitments to the city, have come very grudgingly.
Mr. Rider asked the developer two questions. First he asked how much money it would take to complete the subdivision. Second, he asked if Mr. Fafard would be willing to put the existing lots into a new covenant. Mr. Fafard stated there was about $240,000.00 of work that needs to be completed and he would not be willing to enter in a new covenant.
Mr. Fay stated that there has been no show of good faith on the developer’s part. Dr. Fenby also stated that the developer has shown neglect made no effort to comply with the completion schedules offered by the developer. She stated there are several options the Board could take:
- Take action on the existing bond;
- Extend the subdivision through the remainder of the year with a completion schedule provided to the developer;
- Rescind approval of the subdivision based on the City Solicitor's recommendation; or,
- Ask the developer to offer a completion schedule that would be acceptable to the Board.
At this time the developer asked if the Board could table this matter and return with a compromise in a few minutes.
On a motion by Mr. Fay, seconded by Ms. Hughes, it was duly voted:
To table this matter.
On a motion by Mr. Fay, seconded by Ms. Hughes, it was duly voted:
To remove the matter off the table.
Mr. Fafard stated he was willing to complete three items:
- Apply with National Grid for the lighting plan and provide the Board with proof of the application and payment;
- Plant the trees in the road layout; and,
- Level where possible the undeveloped lots, spread topsoil and seed prior to the October 15 deadline.
He stated that the seeding will take place prior to October 15 and the planting of the trees would be completed by the end of November.
Ms. Fenby stated that this was a good start but that this was not enough. Ms. Fenby asked the City Engineer what additional work could be completed so as to not put the developer in a position of damaging completed improvements. Mr. Cullen stated that the developer could place the granite curbing and lay gravel for the sidewalks.
Mr. Fay stated that the Board had required developers to complete all infrastructure work in the past and did not provide relief when requested. He cited two subdivisions where the developer was required to complete all infrastructure improvements. Mr. Fay also addressed Mr. Fafard's concerns about blocking access to the subdivision. He stated that illegal dumping and other activities on the subdivision property were self-created hardships due to the developer's inactivity and were the responsibility of the developer to monitor. Mr. Fay suggested that Mr. Fafard consider video monitoring.
The Board and Mr. Fafard discussed what additional work that he would be willing to complete as a condition of the requested extension. Mr. Fafard agreed to the following:
On a motion by Mr. Fay, seconded by Ms. Hughes, it was duly voted:
- To apply for lighting through National Grid within ten days and provide the Board with proof of the application by the next meeting and payment when National Grid responded with a payment figure;
- To complete plantings by the end of November 2012;
- To Seed and level all lots where possible by October 15, 2012;
- To install all granite curbing by end of November 2012;
- To gravel set of all sidewalks by end of November 2012;
- To agree to a completion schedule with the City Engineer prior to the September 10, 2012 meeting;
- That no blasting would take place for the remainder of this year;
- To move existing loose rock to the base of the "cliffs" to make the site more stable;
Based on the developer's representations, on a motion by Mr. Fay, seconded by Ms. Hughes, the Board voted to extend the subdivision to September 11, 2012, to give the developer an opportunity to work with engineering and put the Board in a position to vote on a subdivision extension at the next meeting on September 10.
Country Club Estates
Correspondence from Attorney Falk
At the last meeting, Attorney Falk submitted a handwritten request for the return of the bond. This correspondence was just the formal request.
On a motion by Ms. Hughes, seconded by Mr. Johnson, it was duly voted:
To accept and file correspondence.
Correspondence from the City Engineer
Mr. Cullen stated that he has reviewed the current subdivision bond and stated that the remaining bond total is $246,000.00. He also briefly described portions of lot areas that were to be done in the easement taking, however it was never executed by the then owner or the City. He would like to further consult the Legal Department prior to any release of the subdivision bond to discuss alternate costs that are associated with legal findings.
On a motion by Mr. Fay, seconded by Ms. Hughes, it was duly voted:
To table the request until the next meeting to give the Board time to review the files.
The Board allowed Mr. Falk to address the Board. He urged the Board to make a decision this evening due to the fact that this has taken several years to resolve.
Elm Farm Valley Estates
Correspondence from Attorney Norris
Attorney Norris stated that the remaining bond be returned to his clients since the City Council has accepted the streets and the documents were filed at the Registry of Deeds.
On a motion by Mr. Fay, seconded by Ms. Hughes, it was duly voted:
To accept and file correspondence.
Correspondence from City Solicitor
The City Solicitor stated the City Council has accepted the roadways and its appurtenant easement as municipal easements; all documents have been recorded with the South Middlesex Registry of deeds and the bond can be released back to the developer.
On a motion by Ms. Hughes, seconded by Mr. Coveney it was duly voted:
To accept and file correspondence from the City Solicitor, to reduce the bond from $11,000.00 to $0.00 and to change the subdivision status to completed.
Forest Grove
Correspondence from the City Solicitor
The City Solicitor stated the City Council has accepted the acceptance plan for Ewald Ave and Muir Way, the order accepting the roads as public ways and their appurtenant as municipal easements and the developers deeds to the City have all been recorded with the South Middlesex Registry of Deeds. He stated the remaining bond can be returned to the developer.
To accept and file correspondence from the City Solicitor, to reduce the bond from $92,000.00 to $0.00 and change the subdivision status to completed.
PENDING SUBDIVISION PLANS: Updates and Discussion
PRELIMINARY/ OPEN SPACE SUBDIVISION SUBMITTALS
DEFINITIVE SUBDIVISION SUBMISSIONS
Sudbury Street
Submittal
ARBN Development is submitting a definitive subdivision plan for a 3 lot subdivision known as “Ravenswood Road”. The Planning Board set a public hearing date of September 24, 2012 at 7:30pm.
SIGNS
The Sudbury Companies of Militia and Minute
Request for temporary signage
The SCoMM is asking for permission to place a temporary sign on City property located at the corner of Boston Post Road East and Hagar Road from September 22, 2012 to September 30, 2012.
On a motion by Ms. Hughes, seconded by Mr. Johnson, it was duly voted:
To accept and file correspondence, to grant the use of the temporary sign at the corner of Boston Post Road East and Hager Road from September 22, 2012 to September 30, 2012.
Correspondence from Code Enforcement
Status of March Report
Ms. Wilderman provided a detail report on the status of the last sign violation list that was compiled by the members of the Board.
On a motion by Mr. Fay, seconded by Mr. Coveney it was duly voted:
To accept and file correspondence; to send a letter thanking Ms. Wilderman for addressing their concerns.
Code Enforcement
Hand held ticketing device
The Board Members were receptive of the report that was provided by Ms. Wilderman. Ms. Hughes stated she has spoken with Mayor Vigeant and he suggested that the department head should consider adding this into the budget.
Collection Boxes
Mr. Fay stated that the collection boxes seem to be problematic throughout the city. Mr. Fay suggested to address the problem by ticketing the owners of properties for off promise signs since there is no other rules that address the problem.
On a motion by Mr. Fay, seconded by Mr. Coveney, it was duly voted:
To send correspondence to the Code Enforcement Officer asking her to start enforcing the sign ordinance violations according to off premise signs with the collection bins.
UNFINISHED BUISNESS
Master Calendar
Status
Mrs. Lizotte stated the information is posted online in the status calendar. She will further look into the search functions.
INFORMAL DISCUSSION
COMMUNICATIONS/CORRESPONDENCE
On a motion by Ms. Hughes, 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 Ms. Hughes was duly voted:
To adjourn at 9:00 p.m.
A TRUE COPY
ATTEST: _____________________________
Colleen Hughes, Clerk
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