PLANNING BOARD
JANUARY 8, 2008 - 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.
MYLAR ENDORSEMENT FOR SUZANNE SMITH DEAN – 23 DUCK FARM LANE & 10 WHYDAH LANE
Phil Scholomiti (Ryder & Wilcox) presented the Mylar for endorsement for Suzanne Smith Dean for a 2-lot subdivision of property located at 23 Duck Farm Lane and 10 Whydah Lane. Scholomiti noted that the Planning Board approved the subdivision on November 27, 2007 and in the absence of any appeals, the Mylar was signed by the Town Clerk. Scholomiti stated that the applicant has signed and submitted to the Town a Maintenance Agreement, a Protective Covenant including a Statement of Conditions which will be filed with the Barnstable Registry of Deeds. Scholomiti stated that a septic inspection has been performed for the existing dwelling as required by the Board of Health and Title 5.
MOTION: On a motion by Kenneth McKusick, seconded by Sims McGrath, the Board voted to authorize the Planning Board Chairman to sign the Mylar for the Definitive Subdivision Plan prepared for Suzanne Smith Dean for property located at 23 Duck Farm Lane and 10 Whydah Lane, scale 1” = 40’, dated October 23, 2007, prepared by Ryder & Wilcox, Inc.,
VOTE: 4-0-1 The motion passed by a majority. (Seth Wilkinson abstained).
7:00 P.M. – PUBLIC HEARING FOR PROPOSED ZONING BYLAW AMENDMENTS
Paul O'Connor read the legal ad for the following proposed zoning bylaw amendments into the record:
1. Chapter 164-6: Zoning Map
Using a Powerpoint presentation, Meservey visually explained proposed changes to the Orleans Zoning Map in reference to the Seashore Conservancy District in the Nauset heights area to correct inconsistencies with the National Seashore boundary and correctly clarify the properties in the Seashore Conservancy District and the Residential District. Meservey stated that all parcels proposed to be included in the Seashore Conservancy District belong to the Federal Government,
and the parcels proposed to be removed from the Seashore Conservancy District are already developed or are undevelopable. Meservey noted that the proposed article will not make any parcels buildable or restrict building on any lots.
Planning Board Discussion:
There were no comments from Planning Board members.
Public Comments:
There were no comments from the audience members.
2. Chapter 164-21: Schedule of Lot Yard and Bulk Requirements
Meservey stated that under the current zoning bylaws, homes with a footprint or building coverage larger than 4,000 square feet require a Special Permit from the Zoning Board of Appeals. Meservey noted that citizen complaints have been expressed to the Planning Department regarding new “excessively large” or “out of scale” homes that have been built in Orleans in recent years. Meservey stated that the proposal would be for large homes to be initially reviewed by the Architectural Review Committee (regarding massing, scale and bulk impacts under the review criteria in their existing design guidelines, as written in §164-33.1 of the Zoning Bylaws, which were updated at a recent town meeting). Meservey explained that the Architectural Review Committee
would review proposed plans, and report to the Zoning Board of Appeals with an advisory opinion in order to help guide the Special Permit process. Meservey stated that under the proposed bylaw the Architectural Review Committee would review proposals and report back whether the proposal had overall balance proportions and whether it is consistent with other homes and surroundings in the area, including proportion in relationship to nearby homes. Meservey state d that the Architectural Review Committee has more experience in design review than the Zoning Board of Appeals and they are in the best position to provide an opinion on before a decision is rendered.
Public Comments
Cass Carroll (Architectural Review Committee Chair) stated that typically the Architectural Review Committee only deals with commercial structures and has not rendered opinions on single-family residential homes, only condominium structures. Carroll indicated that she did not feel that the Architectural Review Committee would be in favor of this zoning bylaw proposal.
Wilkinson requested an official letter from the Architectural Review Committee with an opinion regarding the proposed zoning bylaw on large residences.
Planning Board Discussion
Guzzeau reported that in a Massachusetts Supreme Court case regarding large homes vs. community character, the court ruled in the town’s favor.
O'Connor questioned how to monitor consistency with other homes in the area, without creating a cookie cutter view.
3. Chapter 164-4: Definitions
Meservey stated that the proposed zoning bylaw have two minor changes that would clarify two of the definitions in the zoning bylaws including “Buildable Upland” and “Apartments”. George Meservey noted that “Buildable Upland” alludes to, but does not specifically mention land subject to flooding as well as a reference to the FEMA Flood Zone which would be covered in the new language. Meservey stated that the clarified definition for “Apartment” would state that up to four units in the Village Center District would not be considered apartments for regulatory purposes under the zoning bylaw. Meservey stated that the clerical change would allow for consistency with changes to the Village Center adopted at a previous town meeting.
Planning Board Discussion:
There were no comments from Planning Board members.
Public Comments:
There were no comments from the audience.
4. Formula-Based Business Bylaw
Meservey stated that the Orleans Comprehensive Plan charges the Planning Board to take steps to protect community character and the Planning Board feels that input from residents will help safeguard the best interests of the town. Meservey stated that Planning Board members have discussed the impact of formula-based businesses which could erode the unique seaside character of Orleans. Meservey noted that a specific concern is that standardized businesses always have the same standardized offerings regardless of the exterior architecture, size or location of the building. Meservey stated that the seaside location and character of Orleans is an important reason for people to visit and reside. Meservey explained that towns nearby (the towns of Dennis and Nantucket) have adopted
restrictive bylaws regarding formula-based businesses in order to protect the character of those towns. Meservey stated that in order for the Planning Board to determine what is in the best interest of Orleans, they are seeking input from residents regarding restaurant and retail formula businesses. Meservey noted that the Planning Board is trying to determine the long-term effects on the town of not taking any action on Formula-based Businesses at this time. Meservey explained that Orleans is a market town which serves residents and visitors from multiple surrounding towns. Meservey described the adverse effects that could occur from regulating formula-based businesses, such as the inability to rent commercial space which would result in town-wide vacancies in commercial buildings. Meservey explained that existing businesses would be grandfathered in under the existing zoning bylaws, but any expansion of businesses would have to be reviewed and
approved for a Special Permit from the Zoning Board of Appeals.
Meservey gave the following definition for Formula Business:
Formula Business – A type of retail sales establishment, restaurant, tavern, bar, take-out food establishment or other food establishment that is under common ownership or control, or is a franchise, and which, along with ten (10) or more other establishments maintains 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, hat, and pins (other than name tags).
- Standardized signs including, but not limited to standard fonts, colors, and slogans.
Meservey explained that there are approximately 36 existing formula-based businesses in Orleans, and more than half of them are either retail or restaurant establishments, which would be grandfathered in town, but would need Special Permits for any expansion of a business. Meservey stated that the proposed bylaw would prohibit the proliferation any new formula-based businesses in Orleans limited to restaurant and retail uses, not including banks, gas stations, or grocery stores. Meservey stated that the proposed bylaw would protect the unique character of Orleans and prohibit homogenization of the town.
Public Discussion:
Jon Fuller (Main Street – speaking as a citizen and business owner) stated his opinion that formula-based businesses have a right to compete as part of the Orleans business community provided they can alter their formulae enough to preserve the character of Orleans. Fuller stated that formula business should be allowed in all established retail mall areas of the town such as Skaket Corners, Hilltop Plaza, Orleans Marketplace, Jeremiah’s Square and locations along Canal Road. Fuller explained that formula businesses must be required to alter their formula to develop within the footprint of the existing buildings or buildable land in these areas and be in complete conformity with the existing sign and lighting bylaws. Fuller stated that formula businesses must use
architecture that is in keeping with the Village Center Plan and provide independent traffic studies to determine their impact on the downtown and other Limited Business zones. Fuller stated that little room should be left for waivering of requirements, and it should be a requirement that permit approvals must be obtained through all town regulatory bodies before any permits are granted. Fuller stated his opinion that most formula businesses do not eliminate local business, but would provide alternatives that do not currently exist in town and provide anchors for small businesses to revitalize stagnant shopping areas. Fuller noted that small businesses that chose not to develop their nitch and keep up with local needs could perish, but that is what free enterprise and competition is all about. Fuller noted that a downside would be if too many of the same types of formula businesses try to come to Orleans it would not be good, but businesses
remove themselves pretty quickly from unprofitable areas.
Todd Thayer (Cape Cod Brokerage) thanked the Planning Board for bringing this issue to the townspeople, and stated that it is a very important issue which comes with its own set of challenges. Thayer stated his agreement with the general consensus not to change the character of Orleans but noted there are issues that need to be considered. Thayer stated that the Town of Orleans is currently not a vibrant business community as shown by the number of vacant commercial spaces in town-wide with very little economic growth. Thayer stated there is
currently approximately 21,000 square feet of good retail spaces in town some of which have been vacant for long periods of time due to a lack of demand in doing business in Orleans. Thayer stated that the last commercial lease in town was at Hilltop Plaza for 4,000 square feet for a thrift store at under market rent. Thayer said that if the town prohibits national retail tenants then most of this space will remain vacant or will have to be deeply discounted which decreases property values in town. Thayer stated that there are many buildings (estimated at 1,500 square feet) in town that need economic overhaul and without national cash influx they will continue to deteriorate over the next few years. Thayer noted that national tenants bring the economic power, borrowing
credit, and finances to renovate and revitalize commercial areas, as well as pay higher rents which helps to make commercial projects financial viable. Thayer stated that national tenants will allow the tax rates to remain high, which increases the real estate value for surrounding properties. Thayer stated that new condominium developments in town are now competing with commercial development reducing the available space for retail. Thayer noted that Orleans is demographically the oldest town in the state of Massachusetts and there is a real need for young business risk-takers to come to Orleans.
Kevin Galligan (Great Oak Road) expressed his opinion that formula businesses should be required to conform with the character of the town, but opportunities for consumption should not be limited in town. Galligan suggested making the bylaw applicable to everything listed such as restaurant establishments, except for retail.
Seth Wilkinson questioned whether retail businesses should be limited by size, and if so what would be the square footage to draw the line?
Allen McClennan (Namequoit Road) stated that all of the issues that have been raised are very important, but the danger that Orleans has is the possibility of becoming “anyplace USA” which could happen quickly. McClennan stated that if you can exercise architectural control, people sometimes forget what’s inside and what part of the formula. McClennan suggested modifying the Special Permit process to set limits or caps and modifying the bylaw to set up standards in the bylaw that guides the Zoning Board of Appeals to issue Special Permits for all types of businesses would give better control than the broad brush approach. McClennan declared that the Planning Board is headed in the right direction, but needs to modify the technique.
Kenneth McKusick questioned the previous speakers whether the restriction would just be applied to restaurants in town.
Todd Thayer (Cape Cod Brokerage) stated his opposition to a proliferation of chain restaurants in town and stated his opinion that they would be detrimental to the town and could be restricted in size.
Sims McGrath clarified for the audience that the advertised bylaw is intentionally very restrictive with the idea that the type of restrictions could be modified or lessened, but cannot be made more restrictive than what was legally advertised.
Bill Lane (The Lane) stated that the proposed bylaw is too broad and limits competition resulting in a lot of empty commercial space which limits growth. Lane stated that well-run restaurants are okay and provide jobs and taxes. Lane stated his opposition to the proposed bylaw as written which closes the door to new opportunities.
Brooks Woods (Larboard Lane) declared that the proposed formula business bylaw is confusing and allows no opportunity for a variety of goods and services. Woods stated the importance of
maintaining the visual beauty in town and announced that the Architectural Review Committee should be “given teeth to do their job”.
Kenneth McKusick requested input from the Architectural Review Committee on the proposed bylaw.
Cass Carroll (Architectural Review Committee Chair) stated that the Architectural Review Committee deals with all issues of commercial structures including signs, lighting and architectural design.
Claire Tazzini (Loomis Lane) stated that age restricting limitations on night driving make it necessary for many residents to use the businesses already in town, and suggested that the Architectural Review Committee control business growth. Tazzini pronounced that more consideration should be given to a bus hub in town.
Rick Segal (East Orleans) questioned the restriction for restaurants vs. retail in areas such as Skaket Corners. Segal noted that fast food and drive-through restaurants have already been eliminated in town. Segal suggested using smart planning by town boards to determine where businesses can thrive in town.
George Tazzini (Loomis Lane) declared that regulations mean more costs to the residents. Tazzini stated that he believes in competition and free enterprise and chain restaurants can do a better job at a more reasonable price. Tazzini expressed an opinion that the regulations are geared towards special interests in town and declared that to be un-American. Tazzini stated that moratoriums and regulations which are blanket prohibitions are overreaching in this day and age. Tazzini showed pictures of vacant commercial spaces and stated the need to fill those spaces.
Thomas Joy (Morgan’s Way) stated that Orleans has been the hub of the lower Cape for many years and stated his agreement with the comments made by Fuller and Thayer regarding the need for beneficial commercial growth in Orleans. Joy said that new business proposals need more latitude in the regulations in order to survive in Orleans and allow people to avoid long drives for goods and services.
Jon Fuller (Main Street) declared that formula businesses could be good assets (without any need for expansion) in town in the commercial areas that are already set up for that purpose.
Paul O'Connor questioned audience members on their definition of “character of the town” and inferred that there can be “unintended consequences” which would impact the ability to obtain goods and services for the town’s citizens.
Jon Fuller stated his opinion that the Planning Board needs to better define what “character” and “vibrant” mean to the Town of Orleans since they are very general terms.
Cass Carroll (Architectural Review Committee) explained how the Architectural Review Committee tries to maintain the character of the town through building architecture from various time periods and try to coordinate and slowly modernize the general aesthetic look of buildings throughout the town. Carroll stated that each building in town affects the buildings on each side of them.
Kenneth McKusick stated his opinion that this bylaw should not be forwarded to town meeting at this time, and the Planning Board needs to work with the Architectural Review Committee to determine how to meet the various needs for goods and services in town.
John Fallender declared that the Planning Board will review all of the comments from business owners and residents on the proposed bylaws and will vote at the next meeting whether any of the bylaw will be forwarded for town meeting vote.
Kenneth McKusick indicated that the Architectural Review Committee Chairman did not seem to express any support for the proposed bylaw regarding large homes and questioned whether it should be forwarded on for town meeting vote in its present form.
Sims McGrath expressed regret that the Architectural Review Committee was not requested to be more involved and provide valuable input into the creation of the proposed bylaws which they would be directly responsible for. McGrath stated that he would not be in favor of forwarding the second article until dialogue was held between the Planning Board and Architectural Review Committee members.
Kenneth McKusick noted that no objections were heard on the first and third proposed zoning articles on the zoning map change and the modifications of the definition.
In the absence of Seth Wilkinson (who left at 7:50 p.m.), the Chairman requested that Associate Member, Gary Guzzeau vote on the zoning bylaw amendments.
MOTION TO CLOSE EVIDENTIARY PORTION OF THE PUBLIC HEARING:
MOTION: On a motion by Sims McGrath, seconded by Paul O'Connor, the Board voted to close the evidentiary portion of the zoning bylaw public hearing.
VOTE: 5-0-0 The motion passed unanimously.
CONSENSUS: There was a consensus of the Planning Board to request opinion letters on two of the articles from the Architectural Review Committee for the next Planning Board meeting, and to discuss whether to forward any of the proposed bylaws to the Board of Selectmen for inclusion on the town meeting warrant in May 2008.
VILLAGE CENTER CONSTRAINTS MATRIX
The Planning Board discussed the results of input to the Village Center Constraints Matrix and agreed that it should be updated periodically to determine specific trends in how the town progresses.
PLANNING DIRECTOR’S REPORT
Meservey reported that an appeal has been filed on the Planning Board’s denial of the Kennedy Subdivision plan for 40 & 50 Tom’s Hollow Road and stated that Town Counsel has already filed a response to the lawsuit on the Planning Board’s behalf through the Land Court
VILLAGE CENTER REPORT
McGrath reported on a Village Center Master Plan presentation to the Board of Selectmen on December 19, 2007 requesting funds for a Village Center Market Study in FY ’09 and funding for a streetscape in FY ’10. McGrath noted the Town Administrator’s assertion that funds are slated in FY ’11, but Planning Board members agreed that was too far in the future to be reasonable and agreed to request moving the funding up on the Capital Improvement Plan, and acknowledged Town Charter and Town Meeting obstacles.
APPROVAL OF MINUTES: November 27, 2007
MOTION: On a motion by Sims McGrath, seconded by Kenneth McKusick, the Board voted to approve the minutes of November 27, 2007.
VOTE: 4-0-1 The motion passed by a majority. (Paul O'Connor abstained).
APPROVAL OF MINUTES: December 11, 2007
MOTION: On a motion by Paul O'Connor, seconded by Kenneth McKusick, the Board voted to approve the minutes of December 11, 2007.
VOTE: 4-0-1 The motion passed by a majority. (Gary Guzzeau abstained).
ADJOURNMENT
MOTION: On a motion by Kenneth McKusick, seconded by Paul O'Connor, the Board voted to adjourn at 8:50 p.m.
VOTE: 5-0-0 The motion passed unanimously.
SIGNED: ______________________________ DATE: _______________________
(Paul O'Connor, Clerk)
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