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Planning Board Minutes 11/13/2007
PLANNING BOARD
NOVEMBER 13, 2007 - Minutes

A meeting of the Orleans Planning Board was called to order at 7:00 p.m. in the Nauset Meeting Room at the Orleans Town Hall.  Present:  Chairman: John Fallender; Vice-Chairman:  Seth Wilkinson; Clerk:  Paul O'Connor; Sims McGrath; Kenneth McKusick; Associates: Gary Guzzeau; John Ostman.  Planning Department Staff: George Meservey; John Jannell; Secretary:  Karen Sharpless.  Also Present:  Board of Selectmen Liaison:  Jon Fuller.  


7:00 P.M.- SCENIC ROAD TREE HEARING - NSTAR - CIRCUIT # 632 AND CIRCUIT # 751

Paul O'Connor read the legal ad into the record.  Paul Sellers (NSTAR Arborist) stated that proposed tree trimming in Orleans is consistent with the following tree trimming standards: 12’ above the wire, 8’ to the side and 8’ below the primary wire.  Sellers stated that no tree cutting is proposed during this project.    

Dan Connolly (Tree Warden) was unable to attend the meeting, but Meservey stated that a discussion with Dan Connolly (Tree Warden) indicated that there is a good working relationship and joint oversight between Dan Connolly and NSTAR representatives which provides for quality tree trimming and cutting in town.  Meservey noted that any concerns with the work being done on specific trees by NSTAR can be directed to Connolly and issues will be resolved.  Meservey stated Connolly’s contention that the removal of hazardous trees is beneficial to the town and NSTAR has helped to resolve these issues in the past.  Connolly has assured the Planning Board that he will continue to oversee NSTAR projects and recommended that this project be allowed to proceed.  Sellers stated that all tree work will be done during a normal working day (with police patrol) and a chipper will be utilized and debris clean up will be provided when the project is completed.  

MOTION TO CLOSE EVIDENTIARY PORTION OF THE TREE HEARING:  On a motion by Sims McGrath, seconded by Kenneth McKusick, the Board voted to close the evidentiary portion of the scenic road tree hearing for NSTAR for trimming of trees on roads within Circuit #632 and Circuit # 751.  

VOTE:   5-0-0   The motion passed unanimously.  


MOTION TO APPROVE:  On a motion by Sims McGrath, seconded by Ken McKusick, the Board voted to approve the tree trimming request by NSTAR for trimming trees on roads within Circuit 632 and Circuit 751.  

VOTE:  5-0-0    The motion passed unanimously.  





PRELIMINARY SUBDIVISION HEARING - EASTWARD HOMES - 48 PORTANIMICUT ROAD

Wilkinson recused himself from discussion of the Preliminary Subdivision plan for 48 Portanimicut Road due to a conflict because he is a trustee for the Orleans Conservation Trust which has land abutting this property.  McKusick offered to recuse himself due to a relative who has property abutting 48 Portanimicut Road, but Phillip Scholomiti stated he has no objection if McKusick votes on this project.   Fallender requested that Gary Guzzeau vote as a regular member in Wilkinson’s absence.   

Phil Scholomiti (Ryder & Wilcox) presented a 4-lot Preliminary Subdivision Plan for Eastward Homes at 48 Portanimicut Road which is located in a Residential District and Groundwater Protection District 3.  The access will be provided over a proposed paved driveway.  Scholomiti stated that each of the lots has adequate frontage on a 33’ right of way.  Each of the lots contains 40,000 square feet of buildable upland and meet the lot shape factor.  One house will be removed from the property.  All road runoff will drain into two subsurface drainage structures.  All lots will be served by underground utilities.    

Scholomiti stated that he met with the Board of Health on November 1, 2007 and they indicated the following issues of concern:  The Board of Health would prefer that the road remain pervious, but if it is paved, it will need adequate drainage and must be maintained due to issues from the 16’ sloping of the area from Portanimicut to the cul-de-sac.  Scholomiti noted the Board of Health request that the proposed drainage system must be shown on the plan and maintained through a Maintenance Agreement and a Statement of Conditions.  Scholomiti stated the Board of Health request that cultivation on the property be limited and future owners must be informed of the need for limited cultivations.  All owners now and in the future must be notified and it must be noted on the Subdivision Plan and included in a Statement of Condition that this property is in Groundwater Protection District 3 which requires that 30% of the lot area be retained in its natural state.  It must be noted on the plan and in the subdivision approval that all zoning requirements and subdivision rules and regulations must be met and no variances will be granted by the Board of Health.

Meservey agreed with Scholomiti’s suggestion of a providing a note on the subdivision plan regarding property owners maintaining 30% of the lot in its natural state due to its location in Groundwater Protection District 3.  Meservey stated that the mature white pine trees must be protected and no land clearing is to be done until the Definitive Plan is approved.  Stormwater calculations must be provided as part of the Definitive Subdivision Plan filing and no runoff is allowed to reach the public way.  Meservey noted that the shape factor on Lot 3 is as close to the shape factor maximum as allowed by the Orleans Zoning Bylaws since the lot is long and narrow.  Meservey stated that this Preliminary Subdivision Plan meets all the requirements in the Orleans Zoning Regulations.  Meservey said that the right of way is wide enough for adequate access.  McGrath noted that all building removals can be dealt with at the Definitive Subdivision Plan filing stage.  Fallender stated that no clear cutting is allowed on this property as has previously been done by this developer.  Meservey stated that the road will be widened to 14’ as proposed and a Road Plan and Profile will be required as part of the Definitive Subdivision Plan filing.

McGrath stated that all erosion materials must be retained on site to avoid runoff onto abutting properties.  Fallender requested that the large trees be noted on the Definitive Subdivision Plan.  

Meservey read the following section §164-42B of the Orleans Zoning Bylaws into the record:  

“Land may not be substantially altered or changed in use without certification by the Building Inspector that such action is in compliance with then–applicable zoning or without review by him regarding whether all necessary permits have been received from those governmental agencies from which approval is required by federal, state or local law.  Responsibility for obtaining permits and certification shall be that of the owner of the premises”.  

Meservey stated that land should not be cleared or altered without compliance with zoning and large scale clearing of land is regulated by the Regional Policy Plan through the Cape Cod Commission.  

McKusick stated his opinion that the Planning Board should support Board of Health comments and requests on subdivision proposals.  

O'Connor stated the importance of prior notification to the developer of the requirements stated in the general bylaw regarding clear cutting before any substantive changes are made to the lot to protect the property and avoid resulting developer claims of ignorance of the laws.  

McGrath indicated that the applicant should consider the Board of Health comments and, if necessary, state why the applicant feels that any of the comments can’t be complied with.  

Public Comments:  

Lawrence Dias (on behalf of abutter Gloria Dias) suggested using Caroline’s way as a sample of a way to construct the road.  

MOTION TO APPROVE:  On a motion by Sims McGrath, seconded by Paul O'Connor, the Board voted to approve the Preliminary Subdivision Plan prepared for Eastward Homes Business Trust, dated October 19, 2007, Scale 1” = 50’, for land located at 48 Portanimicut Road subject to the following conditions:
  • Property location in Groundwater Protection District 3 must be noted on the plan.
  • All sediment must be controlled during road construction.
  • Specimen trees must be shown on the Definitive Plan and there shall be no clearing of trees until the Definitive Plan for 48 Portanimicut Road is approved.  
  • All runoff must be contained on-site.
  • Extend the proposed water main to the end of the Right of Way and relocate the hydrant to the end of the extended main. This should be shown on the Definitive Plan.
  • A hydrant be placed at the intersection of the proposed way and Portanimicut  Road. The location should be shown on the Definitive Plan.
  • The existing water service to 48 Portanimicut Road shall be cut and capped and the home shall be removed.
  • All proposed lots shall be served by Town Water.
  • All Board of Health comments shall be taken into consideration.  
VOTE:   5-0-0   The motion passed unanimously.  


Wilkinson returned to the meeting at this point to vote as a regular member.       




PROPOSED ZONING AMENDMENTS

The Planning Board discussed a memorandum from Michael Ford (Town Counsel) regarding proposed zoning bylaws covered under §164-21, §164-42 and Chapter §164-4 (Definitions). Attorney Ford gave reviews of the proposed bylaw amendments and suggested corrections to the wording for clarification or adherence to the law for further review by the Planning Board.  Wilkinson suggested that Mark Robinson might be able to give the Planning Board guidance on wording for Conservation Restrictions.  


COMPREHENSIVE PLAN BUDGET PRIORITIES TO BOARD OF SELECTMEN – FY ‘09

The Planning Board discussed a Planning Department memorandum dated November 8, 2007 regarding the Orleans Comprehensive Plan budgeting recommendations to be forwarded to the Board of Selectmen broken down into the following categories as required by the Home Rule Charter:  Wastewater Management, Affordable Housing, Transportation & Drainage, Open Space and the Village Center Master Plan.  The budgeting recommendations are used by the Board of Selectmen to determine priorities in the Capital Improvement Plan and the town’s operating budget to reinforce the priorities and long range goals of the community.  McGrath noted that the Planning Board needs the support of the Board of Selectmen to engage the services of a professional consultant to help the Planning Board determine the technical issues necessary to complete a Village Center Master Plan.  

ACTION:  There was a Planning Board consensus that McGrath make a presentation of the Orleans Comprehensive Plan budgeting recommendations at the next Planning Board meeting for endorsement and then to the Board of Selectmen.


OLD BUSINESS

Commonwealth Capital Score

Meservey stated that the Town of Orleans has received a Commonwealth Capital Score of 105 for FY ’08 which is an increase over the previous score of 99.  Meservey stated that the scoring is done by determining how the town is meeting State Growth Initiatives and helps when the town makes grant applications.  


NEW BUSINESS

Cancel Planning Board meeting on December 25, 2007 (Christmas Day)

MOTION:  On a motion by Sims McGrath, seconded by Paul O'Connor, the Board voted to cancel the Planning Board meeting scheduled for December 25, 2007.  

VOTE:   5-0-0    The motion passed unanimously.  


8:00 P.M. - DISCUSSION WITH LOCAL BUSINESS OWNERS REGARDING FORMULA BUSINESSES

There were approximately 40 people in attendance for this Formula Business discussion.  Fallender thanked business owners for taking the time to come and discuss the issue of how formula businesses


could affect the character of Orleans with the Planning Board.  Fallender read the Vision Statement from the Orleans Comprehensive Plan which states, “It is the policy of this Town to ensure that future growth is at a level and in such a manner that will have no or minimal adverse effect upon the semi-rural character and environmental integrity of the Town”.  

There was a discussion of what constitutes a formula business and the following definition was given:

*Formula Business* - A type of retail sales establishment, restaurant, tavern, bar, take-out food establishment or other food establishments that are under common ownership or control or is a franchise, and which, along with ten (10) or more other establishments maintain two or more of the following features:
 
  • Standardized menu or standardized array of merchandise with 50% or more of in-stock
merchandise from a single distributor bearing uniform markings.
 
  • Trademark or service mark, defined as a word, phrase, symbol or design, or a
combination or words, phrases, symbols or designs that identifies and distinguishes the source of the goods from one party from those of others, on products or as part of store design.
        
  • Standardized interior décor including, but not limited to style of furniture, wall-coverings or permanent fixtures.  
  • Standardized color scheme used throughout the interior or exterior of the establishment.  
  • Standardized uniform including, but not limited to, aprons, pants, shirts, smocks or dresses, hats and pins (other than name tags).  
  • Standardized signs including, but not limited to, standard fonts, colors and slogans

The Planning Board asked audience members for their input on the impact of formula businesses on the business community, the local economy and the character of the town and a discussion ensued on the following questions:  

What works or does not work for businesses in Orleans?

Dave Ross (Seashore Park Motel and the Governor Prence Motel) stated that he is in the lodging business and warned against the affect on a town from over-regulation.  Ross advised against ignoring the needs of consumers.  

Bob Wilkinson (Wilkinson Associates Real Estate) stated his opinion that the success of businesses in the town is due to its location as a destination on Cape Cod which has a New England atmosphere.  Wilkinson stated that there would be overdevelopment if formula businesses are allowed in town and Orleans needs to retain its unique atmosphere which is good for businesses. Wilkinson stated that people come to Cape Cod to get away from overdevelopment in their own towns.  

Sid Snow (Snow’s Home & Garden) stated that some formula businesses can be good for a town, but need to be regulated.  Snow urged the Planning Board to look at formula business regulations regionally in order to avoid business spill-over into or from other towns.  Snow urged the Planning Board to consider a cap of 60,000 or 70,000 square feet on formula businesses to avoid businesses that are too large for the town.  Snow agreed to share customer preference survey results they are conducting in their store with the Planning Board.  Snow urged the Planning Board to determine zoning changes that could be advantageous to the business community.  

Don Krohn (Orleans Whole Food Store) urged support of a ban on formula businesses in Orleans in order to maintain the small unique character of the town.  Krohn stated his opinion that a ban on Formula Business only in the Village Center would not be sufficient and the ban should be town-wide.  

Beverly Fuller (Fuller Locksmith) stated that people come to the Cape for the town character and formula businesses will change the character of the town.  

Scott Barron (commercial landlord) stated that a formula business ban is good for the town and will protect the town’s character.  Barron stated that a more serious problem in Orleans is a lack of parking for the downtown businesses.   

Robert Jacobus (Coast Restaurant) stated that people like small businesses where people congregate and know each other.  

John Murphy, Jr. (Land Ho Restaurant) noted the need to retain the character of the community and stated that change is not always a good thing.  Murphy stated that people come to the Cape to get away for neon signs as in other communities.  

Associate Planning Board member, John Ostman arrived at the meeting.


How important is appearance and character to the local economy?

McGrath questioned whether appearance and character of the town can be regulated by just creating sign and architecture regulations and the audience responded negatively.  

Sid Snow (Snow’s Home & Garden) stated that appearance is important to any town and amenities such as outdoor café seating but noted that lack of parking can be a limiting factor to the success of downtown businesses.  Snow noted that more town events would help foster successful businesses but stated that it must be done by more than just the Chamber of Commerce staff.    Snow stated that signage and architecture are important to a town and policy regionalization may be necessary.  

Bob Wilkinson (Wilkinson Associates Real Estate) stated that character is very important to Orleans and noted that people do not come to Orleans to go to formula businesses.  Wilkinson stated the importance of preserving the community.

Dave Ross (Seashore Park Motel and the Governor Prence Motel) stated that he is against the regulation of formula businesses and claimed that people come for town character, but want the amenities and services they are used to where they come from.  Ross warned against regulation that will result in loss of people, both residents and visitors.  Ross said that people want to have fun and support the local economy, but not if a town is out of step with the rest of the world.  Ross told the Planning Board about other towns that have regulated businesses to the point where they have left the towns.  
  
Kate Roach (Beacon Restaurant) explained that people come to Orleans because the atmosphere and businesses are different from what they can go to where they live.  Roach warned about how

abutting towns can be affected by formula businesses and stated the need to protect the character of Orleans businesses.   

Don Krohn (Orleans Whole Food Store) expressed his opinion that local businesses are unique, and they provide the goods and services that people expect.  Krohn warned about overdevelopment like other towns that have allowed formula businesses in their communities.    


How can the Planning Board facilitate a diversity of businesses in Orleans that is unique and which meets local needs  

The Planning Board acknowledged business-owner concerns about a lack of parking in the downtown area of town.  

Todd Thayer (Cape Cod Brokerage) explained the difficulties of trying to bring business investment into town and complained that a formula business ban would make it even harder to convince businesses to invest in Orleans.  Thayer stated that Orleans does not have a vibrant community at the present time and a formula based business ban would reduce the market segment that could go into vacant commercial buildings.  Thayer reminded the Planning Board that some business zoning has already been reduced when some portions of the General Business Districts were changed to Limited Business.  Thayer stated that there is no demand for business space and the demographics of the area (which are reviewed by businesses) of the area are tricky because the town is surrounded by water.  

Sid Snow (Snow’s Home & Garden) explained that a customer preference survey in the store has demonstrated the lack of rental and affordable housing and daycare facilities in town to accommodate the needs of younger residents in turn serve the needs of the older residents.  Snow urged the Planning Board to take an inventory of the resident’s needs in town and talk to businesses before proceeding with future plans.  


What are your thoughts on the draft Formula Business Regulation?

Jim Trainor (commercial landlord) suggested controlling square footage for large proposed business and providing adequate parking for existing downtown businesses.  Trainor explained that insurance companies will not insure empty buildings and they decay faster due to lack of proper maintenance.  Trainor stated that people come for and rural atmosphere and quality of life in Orleans.  

Lisa Moss (Saltwater Grill) stated her opinion that the town needs new businesses to occupy empty buildings and storefronts rather than constructing new buildings in town.  

Shawn Delude (Nauset Disposal) referred to a recent economic summit sponsored by the Cape Cod Chamber of Commerce where they expressed the intent to work with the Cape towns to help preserve the character of the towns.  Delude suggested that limiting square footage may be the fastest way to govern size and growth of businesses, as well as regulating signs and building characteristics.  Delude stated that people do not come to Orleans to look for formula businesses. Delude suggested that all of the Chambers of Commerce on the Cape work together with towns on the problem regionally.  Delude volunteered to help on a Planning Board committee to discuss business issues in town.  

At the close of the discussion, The Planning Board thanked business owners for attending this meeting and for giving their input and it was agreed that more


LEGAL ADS

McKusick questioned the necessity of reading the entire contents of legal ads at public hearings and asked whether the readings of legal ads could be waived at future Planning Board meetings.    

ACTION:  Meservey will raise the question of legal ad readings with Town Counsel.


APPROVAL OF MINUTES: October 23, 2007

MOTION:  On a motion by Ken McKusick, seconded by Paul O'Connor, the Board voted to approve the minutes of October 23, 2007.  

VOTE:   5-0-0    The motion passed unanimously.  


ADJOURNMENT

MOTION:  On a motion by Paul O'Connor, seconded by Seth Wilkinson, the Board voted to adjourn at the Planning Board meeting at 9:08 p.m.

VOTE:  5-0-0    The motion passed unanimously.  




SIGNED: ______________________________  DATE: _______________________
                       (Paul O'Connor, Clerk)