PLANNING BOARD
January 13, 2009 - 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; Associates: John Ostman. Planning Department Staff: George
Meservey; Secretary: Karen Sharpless. Board of Selectmen Liaison: Jon Fuller.
Absent: Kenneth McKusick and Gary Guzzeau.
Chairman Fallender requested that John Ostman vote in the absence of Kenneth McKusick. Paul O’Connor read the legal ad for the zoning public hearing into the record.
7:00 P.M. - PUBLIC HEARING - POTENTIAL ZONING BYLAW AMENDMENTS
Fallender gave an overview of how the planning process works and how changes are made to the zoning bylaws. Fallender explained that the Planning Board looks at zoning issues and conflicts with the Orleans Comprehensive Plan and after prioritizing them, they refer them to the Zoning Bylaw Task Force for review and suggested revisions and then they are referred back to the Planning Board. The proposed zoning changes are reviewed through the public hearing process at which time public input is received. After final changes are made by the Planning Board, they are referred to the Board of Selectmen for inclusion on a town meeting warrant.
Meservey gave a PowerPoint presentation to illustrate each of the following proposed zoning amendments.
§164-4 - Definitions
Meservey explained that the following five definitions need to be clarified in the zoning bylaws in order to assist the Building Commissioner in making decisions: 1) Building; 2) Building Coverage; 3) Building Height; 4) Conventional Restaurant; and 5) Fence. Meservey explained that the following definitions of Building and Building Coverage contain zoning bylaw inconsistencies and need to be clarified:
BUILDING: A structure enclosed within exterior walls or firewalls, whether portable or
fixed, built, erected, and framed, and having a roof for the shelter of persons, animals, or
property. For the purposes of yard requirements, decks and porches shall be considered
part of a building but shall not count towards the building coverage of the lot.
BUILDING COVERAGE: The buildable upland portion of a lot which is covered by
buildings, including as well as porches and bulkheads, but excluding parking areas, pools,
decks, or any permanent structures which do not have roofs. [Added 5-13-1996 ATM, Art. 21]
Meservey noted that in the proposed change to the definition of Building, the word “porches” will be positively considered to be part of a building and would count towards lot coverage. Meservey stated that “decks” would remain part of a building, but would not count towards lot coverage. Meservey noted that porches have roofs and decks do not have roofs. Meservey explained that in the definition of Building Coverage, “bulkheads” would count towards building coverage as they are contained within the foundation of a building with a covered surface.
BUILDING HEIGHT: The vertical distance from the average undisturbed existing
natural grade at the foundation on the street side of the building to the top of the ridge.
Except as otherwise provided in § 164-40.2B, the only portions of a structure permitted
above the ridge line shall be chimneys, air conditioning equipment, skylights, ventilators
and antennae and other like features appurtenant to buildings which are usually carried
above roofs and are not used for human occupancy and which in no event shall exceed
5 feet above the ridge line. [Amended 5-9-1988 ATM, Art. 66; 11-18-1991 STM, Art. 3]
Meservey pointed out that in the proposed change to the Building Height definition; the words “on the street side of the building” have been eliminated so that the definition would read, “The vertical distance from the average undisturbed existing natural grade at the foundation to the top of the ridge”. Using a PowerPoint slide, Meservey demonstrated that presently building height is measured as 30’ from the street side of a building to the ridge line which can be vastly different depending on how high the street side is in relationship to the building. Meservey noted that sometimes it is difficult for the Building Commissioner to determine where the street side of a building depending on where and how a building is positioned on a lot. Meservey noted that the many panhandle lots in town can be difficult to determine due to unorthodox configurations.
CONVENTIONAL RESTAURANT: An establishment where the majority of the food
is prepared on site and consumed at tables or counters on the premises. Usually there
is some form of table or counter service whether it be, the taking of a food order, delivery
of food, or clean up/busboy service; and the food to be consumed on site is served on
open plates with utensils, and not in bags or containers suitable for takeout; and a
conventional restaurant will usually promote and advertise the fact that it has eat-in
service and will treat any take out service as being subordinate to its eat-in service.
Meservey stated that the current zoning bylaws have a definition for fast food restaurants (a prohibited use) which makes reference to a comparison to a conventional restaurant that is not currently defined in the zoning bylaws. Meservey explained that the Building Commissioner has requested a clear definition of a conventional restaurant so that he can administer the bylaw correctly. Meservey stated that by adding a clear definition of a conventional restaurant, it will affirm the difference between what is fast food and what is a conventional restaurant. Meservey noted that this definition includes table or counter service, food served on site, and take-out is considered subordinate to the eat-in service which are considered to be the basic tenants of a conventional restaurant which
is at the request of the Building Commissioner.
FENCE: A combination of materials assembled at a fixed location for the purposes
of protection, confinement, enclosure, or privacy. Any fence, that exceeds six seven
6 7 feet in height, as measured from the undisturbed existing natural grade, shall be
required to meet yard requirements of an accessory building as set forth in
Section 164-22.F setback a distance equal to the height of the fence. Trees, hedges,
plants and all other vegetation shall not be considered a fence. [Added 5-10-2004
ATM, Art. 25]
Meservey stated that the current bylaw allows for a six (6) foot high fence, but in order to accommodate for sloping terrain the proposed bylaw would allow an increase to seven feet. Meservey noted that any fence higher than seven (7) feet would have to be set back its height from the property line.
Public Comments:
Jeff Karlson stated that regarding building height, his experience as a builder in Orleans is that
the slope is generally falls away from roadway and may lead to a marshland, water or pond front. Karlson questioned whether situations may arise where people would build houses with flat roofs in order to maximize the 30’ building height allowance. Karlson expressed his hope that people would stay with a Cape-style home with sloping roofs rather than trying to maximize the building height by using a flat roof which could be done with the building materials which are now available.
Jim Trainor stated that his house in situated on a sloping lot in the rear and on one side and had
to design a colonial house with an altered roof pitch. Trainor explained that in building the house ten years ago, they took the average height of the house from the middle of the slope on the street side. Trainor noted that with houses on land that slopes away from the road it could severely limit the allowance of a second floor if you use 9’ ceilings and it might require a shallow pitched roof which would detract from the architectural design of the house.
§164-21 - Schedule of Lot, Yard and Bulk Requirements
Meservey described the following proposed bylaw amendment:
C. In all zoning districts, all construction, with the exception of water-dependent facilities,
such as piers, docks, floats, boathouses, structures used in conjunction with fishing and
shellfishing and structures used for agricultural purposes, shall be set back a minimum
distance equal to one and one-half (1 1/2) times the building height from any coastal
bank, coastal beach, coastal dune, salt marsh, inland pond, lake or inland bank bordering
on any pond or lake. "Building height," for the purpose of this section, shall be the vertical
distance from the preexisting natural grade at the foundation on the side of a building
facing the coastal bank, coastal beach, coastal dune, salt marsh, inland pond, lake or
inland bank bordering on any pond or lake, as defined herein, to the highest point of the
building(s). Notwithstanding anything contained in this section, no building shall be required
to be set back more than fifty (50) feet from any coastal bank, coastal beach, coastal dune,
salt marsh, inland pond, lake or inland bank bordering on any pond or lake. The terms
"coastal bank," "coastal beach," "coastal dune," "salt marsh," "inland bank," "pond" or
"lake," as used in this section, shall be defined as in the Massachusetts Wetlands Protection
Act, MGL C. 131, § 40, and the regulations issued thereunder, 310 CMR 10.04, as of
May 2008. April 1, 1983.
Meservey explained the proposed zoning bylaw change regarding building setbacks from coastal
Resources as defined in the Code of Massachusetts Regulations (CMR) which dates back to 1983. Meservey stated that the State updated the Code of Massachusetts Regulations in May 2008 and the Town of Orleans is simply updating the reference to that regulation in the Orleans Zoning Bylaw. Upon the advice of Town Counsel, the town needs to reference the CMR update as of May 2008.
§164-22 - Modifications
Meservey explained the following proposed bylaw amendment for setbacks in the Village Center District:
§164-22.I.2: Side and rear yards shall be a minimum of ten (10) feet or more, except that,
by Special Permit by the Board of Appeals, following consultation with the Fire Chief
and Board of Health, said side and rear yards may be reduced to zero (0) for party wall
or similar construction, or access for disabled persons, provided that adequate access
is assured for fire or other emergency and public services and that satisfactory
provisions have been made for storm drainage and sewage disposal.
Meservey explained that under the current zoning bylaws, the side yard setbacks are ten (10’) feet in the Village Center District and can be reduced to zero (0’) foot setbacks for party wall construction. Meservey noted that the changes will provide flexibility for handicapped access to be allowed within the side setback for buildings in the Village Center District.
§164-35 - Signs
John Ostman made a disclosure that he is a Board Member of the Chamber of Commerce and has met with the Chamber to help guide the comments regarding proposed changes to the sign code in his capacity as a Planning Board member and as a Chamber member.
Meservey explained a proposed zoning bylaw amendment to rewrite the sign bylaws so they will be clarified and easier for the Building Commissioner to enforce. Meservey stated that the proposed sign code is better organized with a separate section for the following new sign definitions: 1) A-Frame/Sandwich boards; 2) Banners; 3) Ladder Signs; and 4) Sign Height. Meservey noted that the proposed changes include an allowance for “A” frame or sandwich board types of signs with guidelines, as a matter of right. Temporary signs for yard sales, contractors and banners have better descriptions in order to be responsive to current enforcement problems regarding permitting and types of allowed signs, as well as an explanation of the types of signs which are not allowed. Meservey stated that new regulations are proposed for projecting signs. Meservey described the types of signs which will be allowed such as one contractor sign for a typical construction job and flags up to six (6)
square feet, which are currently not permitted in the bylaws. Meservey described the following new proposed regulations for projecting signs which may be a maximum of three (3) square feet in size, they must provide a minimum of eight (8’) foot head clearance, they are not allowed to project over public ways, nor project from the building more than four (4) feet. Meservey explained the following new proposed regulations for banners: 1) They would be limited to the Business Districts; 2) They would be limited to no more than seven days in any six month period; and 3) A temporary sign permit would be required.
Public Comments:
Mary Corr (Orleans Chamber of Commerce) stated that the proposed sign bylaws should be
adequate and more user-friendly for the businesses.
Sims McGrath requested that the audience be provided with a clarification that the Planning
Board advertises proposed zoning bylaws that are more restrictive, but they have the ability to ease up on the restrictions depending on the types of public comments received on the proposed zoning bylaws.
Herb Montgomery (Orleans Chamber of Commerce) stated his opinion that limiting the hanging
of banners to seven days in a six month period is too restrictive and suggested that it be increased to seven days in a 30 day period.
Mary Corr (Orleans Chamber of Commerce) agreed with Montgomery’s suggestion to allow for
an increased timeframe for hanging business banners.
Jeff Karlson questioned the size allowed for banners and Meservey responded that it would be
regulated depending on the distance they are set back from the street. Karlson noted that some businesses use a banner for weekly wine tasting events and would need to put up banners more often.
John Fallender questioned whether banners would need to go before the Architectural Review
Committee and Meservey responded that temporary signs (such as banners) are not subjected to review by the Architectural Review Committee since they are not permanent.
John Ostman questioned whether temporary signs would require a permit from the Building
Department where they have provided drawings of the proposed signs for review. Meservey responded in the affirmative.
Lawrence Diaz stated that if banners are allowed for seven days over a 30 day period, then they
would be up 25% of the time which he stated is unreasonable and could be used as a way to circumvent the basic sign laws. Diaz noted that banners are not as aesthetically pleasing to look at as permanent signs and should be regulated. Diaz questioned how surrounding towns regulate banner signs and whether Orleans could gain some guidance regarding regulating signs in the business district.
John Fallender questioned the rules on removing banner signs after an event is over and whether
a business could leave the sign up for seven days in one week and Meservey responded in the affirmative.
Jon Fuller questioned whether the seven days could be consecutive, and Meservey responded
that it could be any seven days whether or not they are consecutive. Fuller questioned whether a business would have to obtain separate permits if the seven days were not consecutive and Meservey indicated that a single permit could be obtained that would cover a longer period of time, rather than multiple individual permits.
Ladder Signs
Meservey explained the following proposed new regulations for ladder signs: 1) They will continue to be allowed on a lot where three or more businesses are located; 2) The use of ladder signs would eliminate the need for individual businesses to need a free standing sign on a single property; 3) There would be an allowance allowed for one extra sign (with a Special Permit) for any businesses that are not readily visible from the street.
Non-Conforming Signs
Using a PowerPoint slide, Meservey showed examples of large over-sized legal pre-existing non-conforming signs (such as the old Fog Cutter Restaurant which is now the Coast Restaurant) which has height, area and setback non-conformities. Meservey explained that when businesses change owners, non-conforming signs are not currently required to be made conforming with the sign bylaws, but rather they are allowed to change the wording on the sign and remain in its non-conforming status. Meservey stated that the proposed sign regulation would require any sign where an alteration is proposed which requires a permit must be brought into full conformance with the sign regulations when they are altered. Meservey stated that Town Counsel has opined that this regulation is allowable
and can be backed up by case law. Meservey noted that this would require town-wide conformance to the sign bylaws over a period of time.
Public Comments:
John Fallender informed the audience that all business outdoor and sign lighting must conform
to the Outdoor Lighting Bylaw in the Orleans General Code which goes into effect by May of 2009.
John Nicols expressed his opposition (in a letter to the Planning Board) to the proposed change to
the zoning bylaws regarding the measurement of building height from the average undisturbed grade on all sides of the foundation, rather than the street side. Nichols stated his opinion that this proposal was unfairly taking away existing rights of property owners with sloping lots and suggested the following three alternate proposals: 1) Measure the building height from the average grade on the highest side; 2) Measure the height from the average grades on the two highest sides; or 3) Compute the average undisturbed grade on all sides of the foundation, then the average grade on the highest side, and measure permissible building heights from the average of the two figures. Nichols stated his opinion that one of the alternate proposals would treat various lot
configurations more fairly than what is proposed by the Planning Board.
Herb Montgomery requested clarification on whether temporary signs would need Architectural
Review Committee approval or just obtain a permit from the Building Department. Montgomery questioned whether real estate open houses would require temporary sign permits. Meservey responded in the affirmative.
Jim Trainor expressed his concerns regarding the effect of height restrictions depending on the
dimensions of a building and its placement on a lot which may result in the need for a differently altered pitched roof.
Jeff Karlson questioned how other towns regulate building height. Karlson questioned
clarification on the method used to determine whether a sign is undergoing an “alteration” or simple sign maintenance. Karlson questioned the enforcement process that would be used to oversee the removal of contractor signs, particularly in the residential neighborhoods, where signs should be kept to a minimum to maintain the character of the neighborhood.
Lawrence Diaz requested town wide review of the necessity for home occupation signs and their
impact on neighborhoods. Diaz stated his opinion about a proliferation of signs around Town Cove and said they are a blight in those areas. Diaz expressed his opinion that non-conforming signs in town should be brought into conformity. Diaz stated his opinion that there are many substandard lots on the market for long periods of time and builders are forced by land topography to build near roads. Diaz stated his opinion that there is a need for a review of setbacks for houses in determining building height.
Jeff Karlson expressed his concern with building height regulations in regard to the location of a
building near a coastal bank.
CLOSE PUBLIC HEARING
Chairman Fallender closed the zoning public hearing at 7:55 p.m.
Planning Board Comments:
Sims McGrath noted that there were a lot of public comments regarding the regulation of building
height and requested more research from the Planning Department and bring revised proposal to the Planning Board at their next meeting for review.
Seth Wilkinson requested more calculations from the Planning Department regarding the building height issue.
Sims McGrath noted that there are other considerations for houses that can be seen from the water.
Seth Wilkinson stated that Town Counsel has a good understanding of conservations issues.
Seth Wilkinson commented that too many flag signs on one property seems excessive and is not consistent
with the aesthetics and community character of Orleans. Wilkinson stated his opinion that one flag sign per property is sufficient and the number should be capped.
Planning Board members agreed to review Planning Department revisions to be made to the zoning bylaw proposals based on public input gained at the public hearing at the next Planning Board meeting.
APPROVAL OF MINUTES: December 9, 2008
MOTION: On a motion by Paul O'Connor, seconded by Seth Wilkinson, the Board voted to approve the minutes of December 9, 2008.
VOTE: 4-0-1 The motion passed by a majority. (John Ostman abstained).
ADJOURNMENT
The Planning Board meeting adjourned at 8:10 p.m.
SIGNED: ______________________________ DATE: _______________________
(Paul O'Connor, Clerk)
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