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Planning Board Minutes 09/09/2008
PLANNING BOARD
September 9, 2008 - Minutes

A meeting of the Orleans Planning Board was called to order at 6:30 p.m. in the Nauset Meeting Room at the Orleans Town Hall.  Present:  Chairman: John Fallender; Clerk:  Paul O'Connor; Kenneth McKusick; Sims McGrath; Associates: Gary Guzzeau; John Ostman.  Planning Department Staff: George Meservey.  Also Present:  Attorney Michael D. Ford (Town Counsel);  Attorney Thomas Eldred and Attorney Liza Cox.  Absent:  Vice-Chairman:  Seth Wilkinson.

The chairman, John Fallender requested that John Ostman and Gary Guzzeau vote at this meeting as regular members in the absence of Seth Wilkinson and Paul O'Connor.  


EXECUTIVE SESSION

The Planning Board voted to enter into Executive Session at 6:30 p.m. to discussion litigation.

MOTION:  On a roll call and motion by Sims McGrath, seconded by Kenneth McKusick, the Planning Board voted to enter into an Executive Session for the purpose of discussing strategy with respect to pending litigation for Tom’s Hollow Road.  
 
VOTE:   5-0-0    The motion passed unanimously.  


The Planning Board closed the Executive Session and entered into their regular Planning Board meeting at 7:35 p.m.


KENNEDY DEFINITIVE SUBDIVISION PLAN – REMAND

Attorney Michael Ford (Town Counsel) introduced the following two attorneys representing Thomas and Patricia Kennedy:  Attorney Thomas Eldred and Attorney Liza Cox.  Attorney Ford informed the Planning Board that Judge Trombly of the Boston Land Court has ordered the Planning Board to hold a public hearing for a Remand of the Planning Board decision to deny the subdivision request for Tom’s Hollow Lane.  Attorney Ford stated that the Land Court is very specific as to its instructions to the Planning Board with the Order to issue a Supplemental Decision explaining the reasons for the disapproval of the plans for the subdivision plan on November 28, 2007 based on the existing records, without any new submittals or documents.  Attorney Ford stated that the Court does not intend for any changes to be made in the decision, and no new evidence is to be received.  Attorney Ford stated that the Supplemental decision must be filed with the Boston Land Court as well as the previous Certificate of Decision originally filed with the court case within 60 days of the court order dated August 11, 2008.            
MOTION:  On a motion by Sims McGrath, seconded by John Ostman, the Planning Board voted to hold a special meeting of the Planning Board at 8:00 a.m. on Saturday, September 13, 2008 for the purposes of approving the Supplemental Decision regarding 40 & 50 Tom’s Hollow Lane.    
 
VOTE:   4-0-1      The motion passed by a majority.  (Paul O'Connor abstained).


The Planning Board discussed each of the reasons for the Disapproval of the Modification of a Definitive Subdivision Plan (dated November 27, 2008) for 40 & 50 Tom’s Hollow Lane, applicants, Thomas and Patricia Kennedy:

  • The proposed plan does not meet the requirements of the Zoning Bylaw and the Orleans Subdivision Rules & Regulations.
McKusick stated his understanding that the Planning Board’s decision was based on two items based on six requests for waivers (4 of which were approved) and the Planning Board is only addressing the two waivers that were denied.   McKusick stated that one of the denials was for §192-10.C entitled “Dead End Streets” where the applicant was requesting a waiver for a dead end street of approximately 2,000’ as noted in the Subdivision Rules and Regulations below:

§192-10.C.  Dead-end streets.   In cases wherever dead-end streets are used, the length of such dead end street shall not exceed six hundred (600) feet, and the dead-end street shall be provided with a turnaround having a property line diameter of at least eighty (80) feed.  Length will be measured along the center line where it intersects the access way to the center of the cul-de-sac.  

McKusick further stated that this waiver request was denied because it exceeds, by over three times, the limit of dead end streets as stated in the Orleans Subdivision Rules and Regulations.  McGrath stated that through the Subdivision Rules and Regulations, the Planning Board is charged with a number of different purposes, and it would seem that a dead end street of such a length is in conflict with those requirements as transcribed from the Subdivision Rules and Regulations below:

§192-1.  General Provisions

B.  Purpose.  As provided in MGL (Massachusetts General Laws) Ch. 41, under
Section 81-M, these regulations are adopted to ensure that the power of a Planning Board under the Subdivision Control Law shall be exercised with due regard:

  • For the provisions of access to all of the lots in a subdivision by ways that will be safe and convenient for travel;
  • For lessening congestion in such ways and in the adjacent public ways.
                               (8)  For consistency with the Official Town Plan.  


Fallender reiterated McKusick’s earlier remark that the request for a waiver of a dead end street of approximately 2,000 feet more than three times the 600 feet allowed by the Subdivision Rules and Regulations, and questioned whether would be considered to be in the “public interest”.    


The Planning Board discussed §192-10.F from the Subdivision Rules and Regulations as follows:

§192-10.F.  Standards of Adequacy

  • Streets within a subdivision shall be considered to provide adequate access if and only if complying with the standards below.  Proposed access to a subdivision will be considered adequate if there is assurance that such access will also be in compliance with the standards below.  The basis for the different standards provided is the different volume of traffic that will be produced by the total number of existing dwellings plus the proposed lots in the submitted plan.  In the tradition of the town’s many unpaved roads with their rustic quality that adds to the town’s character, a rural road alternative for roads that serve no more than four dwellings is available.
McGrath noted that this road serves 10 or more houses and the rural road alternative is not available by definition.  McGrath noted that as a road that serves 10 or more dwellings, it must be a 40’ wide right-of-way, and standards require a bituminous surface, a 290’ radius curve, a 200’ site distance and no more than a 6% maximum grade.  McGrath stated that the proposed plan does not meet the standards required for the radius curve and in fact exacerbates the problem by proposing a radius that is tighter than that existing presently.  The reduced radius curve will not lessen congestion under General Provisions §192-1 Section B, it does not satisfy the provision of access that would be safe and convenient, it does not provide for reducing danger to life and limb in the operation of motor vehicles, and as such would also be inconsistent with the town plan for not being adequate access.  McGrath stated that under §192-10.F - Standards of Adequacy, the tighter radius curve proposed does not meet the Subdivision Rules and Regulations and exacerbates the inadequacy of the existing conditions.   

The Planning Board discussed the proposed intersection with a stop sign, and noted that it would not be adequately enforceable, and due to the confusion of a proposed driveway (which could be placed anywhere on the property) vs. a constructed roadway, McGrath stated his opinion that it does not meet the requirements of an intersection, because it is not a laid out road.  The Planning Board agreed that the road is continuously curved.  

McGrath referred to §192-10.F - Standards of Adequacy:  Surface Width, and noted that the standards require a right-of-way width of 40 feet, and the applicant did not provide adequate surface width, because the proposal is for a 14 foot wide road which does not meet §192-1.B(1)-(4) which state as follows:

§192-1.  General Provisions

B.  Purpose.  As provided in MGL (Massachusetts General Laws) Ch. 41, under
Section 81-M, these regulations are adopted to ensure that the power of a Planning Board under the Subdivision Control Law shall be exercised with due regard:

  • For the provisions of access to all of the lots in a subdivision by ways that will be safe and convenient for travel;
  • For lessening congestion in such ways and in the adjacent public ways;
  • For reducing danger to life and limb in the operation of motor vehicles;  
  • For securing safety in case of fire, flood, panic and other emergencies;

The Planning Board discussed comments in a memorandum from Captain William P. Quinn, Jr. of the Orleans Fire Department, dated March 20, 2007, which states “the need for adequate road size”, and the last paragraph of the memorandum states, “We have subdivision rules and definitions for a reason and in this case I feel we must stay on this path to protect everyone, even if it [sic] to protect them against themselves”. McGrath stated that in the findings a 40’ right-of-way is required and a 20’ surface width which does not include berms and the applicant has only proposed 14 feet which is a substantial reduction from the required 20 feet and therefore the surface width is inadequate for the reasons previously stated.           

McGrath referred to §192-10.F - Standards of Adequacy:  Site Distance, and noted that there are more than 10 dwellings in the subdivision, the sight distance of 200 feet is required at this particular curve in the road, the applicant was unable to provide 200 feet of sight distance, because it borders a vernal pool and the vegetation cannot be cut down to improve the sight distance.  McGrath stated that there was no radius calculation provided, and a site visit has indicated that the sight distance is nowhere near the 200’ required, and therefore under §192-1.B(1), it does not provide adequate access for safe and convenient travel.  Meservey noted that in a previous filing by the applicant, they proposed 80’-90’ of sight distance, but no calculations were provided with this filing.  McGrath stated that the application does not meet the Subdivision Rules and Regulations requirements noted below:     
   
§192-1.  General Provisions

B.  Purpose.  As provided in MGL (Massachusetts General Laws) Ch. 41, under
Section 81-M, these regulations are adopted to ensure that the power of a Planning Board under the Subdivision Control Law shall be exercised with due regard:

  • For the provisions of access to all of the lots in a subdivision by ways that will be safe and convenient for travel;
  • For lessening congestion in such ways and in the adjacent public ways;
  • For reducing danger to life and limb in the operation of motor vehicles;  
  • For securing safety in case of fire, flood, panic and other emergencies;
  • For ensuring compliance with the applicable zoning ordinances or by-laws;
 



McGrath referred to §192-10.F - Standards of Adequacy:  Maximum Grade, and noted that 6% is the maximum grade allowed under the Subdivision Rules and Regulations and applicant has proposed 11.89% maximum grade which exceeds the 6% required and therefore the plan is inadequate under §192-1 regulations noted below:  
 
§192-1.  General Provisions

B.  Purpose.  As provided in MGL (Massachusetts General Laws) Ch. 41, under
Section 81-M, these regulations are adopted to ensure that the power of a Planning Board under the Subdivision Control Law shall be exercised with due regard:

  • For the provisions of access to all of the lots in a subdivision by ways that will be safe and convenient for travel;
  • For lessening congestion in such ways and in the adjacent public ways;
  • For reducing danger to life and limb in the operation of motor vehicles;  
  • For securing safety in case of fire, flood, panic and other emergencies;
McGrath noted that the increased maximum grade would cause a slippery hazard which is not easily navigated in inclement weather.  Meservey reminded the Planning Board that the components of radius, surface width and sight distance are contingent upon each other (i.e. a narrow road around a curve with limited sight distance), and waivers should be considered individually, and as a whole, when considering safety concerns and causes of the creation of untenable situations.  McGrath noted that the curve, width and sight distance are each crucial safety aspects of roads and these aspects rise as the traffic and likely congestion on roads increases, thus the varying standards in the Subdivision Rules and Regulations for subdivisions of different sizes.  McGrath noted that when considering waivers individually, it is important to consider what aspects may be provided in the other areas, (hypothetically, if the applicant is seeking a waiver of the radius curve, there are certainly circumstances where that might be granted if there is sufficient surface width and sight distance).  McGrath stated another instance where a waiver for sight distance might be approvable if there were sufficient width and an adequate radius curve.  McGrath stated that this application falls substantially short in all three considerations, namely, radius curve, surface width and sight distance and the inadequacies of each of those compounds the safety concerns and therefore creates an untenable situation regarding safety and convenience of access, especially when considering the number of lots that might be served if the application were granted.  


  • The applicant has not adequately demonstrated that the granting of the requested waivers is in the public interest
Sims McGrath read the following section of the Subdivision Rules and Regulations:

§192-1.  General Provisions

E.  Waivers of strict compliance with Subdivision Rules and Regulations.  As provided in MGL Ch. 41, Section 81-R, the Planning Board may waive strict compliance with the requirements of these Rules and Regulations when in the judgment of the Board, such action is in the public interest, and not inconsistent with the Subdivision Control Law.  In waiving strict compliance, the Board may require such alternative conditions as will serve substantially the same objective as the standards or rules waived.  When waivers of construction or design standards for roads proposed for use for access to or within a subdivision are requested, the Planning Board shall consult with the Highway Manager, Police Chief and Fire chief regarding the adequacy of access for automobiles and emergency vehicles prior to granting said waiver.  

McGrath stated his concern that he was unable to make a finding that these waivers were not inconsistent with the Subdivision Control Law and the supposed alternative conditions did not serve substantially the same objective as the standards that were asking to be waived.  McGrath stated his concern relating to §192-10.C. Dead-End Streets as noted below:  

§192-10.C.  Dead-end streets.   In cases wherever dead-end streets are used, the length of such dead end street shall not exceed six hundred (600) feet, and the dead-end street shall be provided with a turnaround having a property line diameter of at least eighty (80) feed.  Length will be measured along the center line where it intersects the access way to the center of the cul-de-sac.  

McGrath stated that the request is for a dead-end street more than three times the allowable length which is substantially inconsistent with the Subdivision Control Law and there was no alternative that would substantially serve the same objective.  Fallender noted that an extension of the dead end street is only in the applicant’s interest, it is not in the public interest and the abutters specially requested that the area remain as is.  McGrath commented that a substantial number of abutters and nearby residents, who use this road, came to us and spoke against changes to the road such as widening the road.  McGrath related that a notable number of members of the public who voiced their objection to the granting of this waiver.  Planning Board members recounted that some members of the public cited concerns with excessive speed on this road, especially on the curve, volume of traffic (residents as well as service employees and visitors), and large vehicles delivering goods and services to the residents.  McGrath voiced concern for the reduced safety and convenience if more traffic is allowed along the dead end street.  

McGrath noted that the applicant had suggested that providing town water and road improvements were in the public interest, and reiterated the strong vocal opposition voiced by abutters and residents who use this road regarding the widening of the road, or to have town water brought in.  McGrath noted that the provision of road improvements and town water in this neighborhood can be provided at such time as the residents so desire, and the opportunity was not unique to this application. McKusick noted that much of what the Planning Board discussed was in regard to the road curve, sight line and the applicant’s proposal to install a stop sign would not be adequately enforceable, and would cause major safety issues.  McKusick reiterated earlier Planning Board discussions regarding concerns with traffic and congestion in that area and safety in the layout that was proposed.  McKusick referred to the concerns that were raised regarding the environmental sensitivity of the area.   

Meservey reminded the Planning Board of important testimony that was heard by the current Planning Board members regarding the 1975 decision on a 6-lot subdivision for this area (including testimony from a member of the Planning Board in 1975) and the limitations that were placed on further development in this area unless the road was improved to meet all of the subdivision road standards.  McGrath described the vocal testimony as well as documents from the 1975 subdivision decision that clearly indicated that the Planning Board from 1975 wanted to limit the development in this area, and property owners were well aware of the existing conditions and limitations when they purchased the properties.  McGrath stated his understanding that the Planning Board in 1975 intended to have those conditions in place unless the road could be brought up to complete standards.  McGrath stated that by virtue of the layout there is no opportunity to bring the road up to standards, partially due to a vernal pool bordering the road, and other environmental concerns mentioned as part of the 1975 decision and continues to be a concern at this point in time.  McGrath stated his inability to foresee putting in a wider road with increased traffic, on the verge of a vernal pool to be in anyone’s best interest, except the applicant.    

McGrath indicated the need under §192-10.F from the Subdivision Rules and Regulations,                  to address the issue of the applicant’s claim that granting the requested waivers would be in the public’s best interest, including a reduction of the following: radius curve, surface width, and sight distance, and an increase in the maximum allowable grade.  McGrath stated that for all of the reasons enumerated in the specifics of the denial as quoted from the Subdivision Rules and Regulations, there is no specific evidence that relief of any of those four standards would improve the standing or condition of any members of the immediate or adjacent neighborhoods or any members of the community at large.  McGrath further stated his opinion that granting the waivers would have been a detriment in terms of compromising traffic safety in the area.  McGrath concluded that the applicant did not demonstrate that there was a public interest to be served by granting relief on the waivers.  McGrath indicated that the only offer the applicant had, was to suggest the inclusion of town water, which was discussed earlier in the minutes.    

MOTION:  On a motion by Sims McGrath, seconded by Gary Guzzeau, the Planning Board voted to direct the Planning Director to prepare a draft Supplemental Decision for Planning Board review at the meeting on Saturday, September 13, 2008.
VOTE:   5-0-0    The motion passed unanimously.  


PROPOSED ZONING AMENDMENTS

The Planning Board discussed possible zoning amendments to be forwarded to the Zoning Bylaw Task Force and subsequently brought before town meeting.  ~Meservey noted the need for review of the town’s sign bylaw.  Fallender suggested that the Chamber of Commerce would be a good way to inform business owners of the upcoming deadline for them to comply with the new General Bylaw, Chapter 122 - Outdoor Lighting Bylaw which was adopted in 2004 for commercial buildings.  As a representative of the Chamber of Commerce, Ostman reported that a subcommittee has been reviewing the Sign Bylaw and Outdoor Lighting Bylaw and have notified Chamber of Commerce members of their responsibilities to comply with the bylaws.  


APPROVAL OF MINUTES:  August 26, 2008

MOTION:  On a motion by Paul O'Connor, seconded by Sims McGrath, the Board voted to approve the minutes of August 26, 2008.

VOTE:   4-0-1      The motion passed by a majority.  (John Ostman abstained).



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