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Zoning Board of Appeals Minutes August 6, 2014
These minutes are not verbatim – they are the secretary’s interpretation of what took place at the meeting – Open Meeting Law – Section III.

Members present:  Peter Conner, David Peck, Michael Main, William Keohan, Edward Conroy, James Simpson, and Mike Leary

Director of Inspectional Services:  Paul McAuliffe

Recording Secretary:  Tracey McCarthy

Mr. Conner called the meeting to order and explained the procedures for the evening.

Public Hearing:         Kingstown Corp. – Case # 3751
                        Long Pond Road
                        SP per Section 205-40, Paragraph D(1); and, a SP per Section 205-18,
                        Paragraphs B(4), F and G, subject to EDC for excavation of 250,000 cubic
                        yards of material in order to construct a solar field.

Mr. Keohan, the Clerk, read the legal advertisement and continuance request letter into the record.

The Board received the following documentation* for review of this case:  
  • Notice of public hearing
  • July 10, 2014 Letter from Atty. Betters requesting continuance
Mr. Main motioned to continue request for Special Permit for Case No. 3751 until September 17, 2014 at 7:45 p.m.  Mr. Peck seconded.  

Granted unanimously (5-0)

Public Hearing:         Indianhead Realty, Inc. – Case # 3734
                        (Continued from 2/12/14; 3/5/14; 5/7/14; and 6/18/14)
                        1929 State Road
                        2 Special Permits in order to construct a maintenance barn,             
                        recreational/athletic fields & supporting equipment shed to
                        enhance existing recreational campground activities.  

Sitting:  Mr. Conner, Mr. Peck, Mr. Keohan, Mr. Main, and Mr. Conroy

The Board received the following documentation* for review of this case:  
  • June 18, 2014 Meeting Transcript
  • July 25, 2014 Memo from John F. Danehey, Esq.
  • July 18, 2014 Letter from Casoli Sand & Gravel
  • July 1, 2014 Memo from Sid Kashi, Town Engineer
  • Amos Fernandes CV
  • July 25, 2014 Supplemental Review from Beals & Thomas
  • July 24, 2014 Email from Richard Churchill
  • July 24, 2014 Email from Gary James
  • July 23, 2014 Email from David Johnson
  • July 22, 2014 Email from Richard Churchill
  • July 24, 2014 Letter from Brenda Weston
  • July 21, 2014 Letter from Roberta Ellis Martino
  • July 23, 2014 Letter from Churchill Engineering RE Response to Roberta Ellis Martino
  • July 25, 2014 Letter from William S. Abbott
  • July 23, 2014 Letter from Richard A. Sampson AIA to William S. Abbott
  • CV of Richard A. Sampson AIA
  • July 23, 2014 Bayside Engineering Peer Review
  • CV of Kenneth Cram, Director Traffic Engineer for Bayside Engineering
  • July 15, 2014 letter from Cross-Spectrum Acoustics
  • CV of Herbert L. Singleton from Cross-Spectrum Acoustics
  • Plans:
  • Existing Conditions Plan dated Aug 22, 2011 – Sheet 1 of 9 (REV 5/22/2014)
  • Proposed Recreational Facility Plan of Land dated April 22, 2014 – Sheet 2 of 9 (REV 6/10/2014)
  • Phase I and II Construction Sequencing dated April 22, 2014 – Sheet 3 of 9 (REV 6/10/2014)
  • Phase III Construction dated April 22, 2014 – Sheet 4 of 9 (REV 6/10/2014)
  • Detail Sheet dated April 22, 2014 – Sheet 5 of 9 (REV 6/10/2014)
  • Traffic Detail Sheet dated April 22, 2014 – Sheet 6 of 9 (REV 7/1/2014)
  • State Road Profile dated April 22, 2014 – Sheet 7 of 9 (REV 6/10/2014)
  • Proposed Recreational Facility Site Overview dated April 22, 2014 – Sheet 8 of 9 (REV 6/10/2014)
  • Landscaping Plan dated April 22, 2014 – Sheet 9 of 9 (REV 7/23/2014)
Mr. Conner stated he believed the Board had all the information they needed to conclude this case.  

Attorney John Danehey, representing Petitioner, opened by stating the CV of the traffic engineer had been submitted.  

Amos Fernandes, Traffic Engineer, opened by introducing his credentials.  He examined the existing and future conditions, the 40 round trips, and max 40 round trips for the site.  He noted that the states threshold for the 40 round trips is 4% and he believed 40 round trips would not have a negative impact on this area.  

Mr. Simpson asked Mr. Fernandes how the trucks arriving at the site between 7:00 a.m. and 8:00 a.m. would impact the study.  Mr. Fernandes noted that the Applicant would adhere to the 40 truck trips per day and that his analysis was conservative.  He noted that in the analysis he did look at peak hour in the morning and peak hour in the afternoon.  He stated that the volume on Rte. 3A for the 40 round trips is 1.3% and the capacity for the roadway is 18,000 per day.  He stated that in his professional opinion he believed 40 truck trips were minor.  

Atty. Danehey discussed plantings as requested by Mr. Main.  He then briefly discussed noise study.

Gary James, Engineer, discussed noise study he performed.  He reviewed noise levels and referred to noise abatement levels.  He discussed divergence, absorption, and shielding and gave a brief explanation of how each corresponds to the project.   He then discussed decibel reduction and noted that the noise level should be 50 or 55.  He stated that just the traffic noise level from Rte. 3a is above 90.  He briefly discussed buffer requirements of the Town and expressed the only one he agrees with is when the trucks break out from the north they no longer have shielding associated with the embankment.  He referred to noise abatement and noted if the amount of trips were limited, that would limit the amount of noise.  He discussed utilization rate being 40%.  He concluded by stating shielding or limitation are ways to reduce noise impact.  

Mr. Simpson asked if an aggregate separator would be on site.  Mr. Churchill and Mr. James responded there would not be.  Mr. James stated the plan is to remove trees, then stumps, and then start from existing pit area.  

Gary James reviewed changes made to plans.  He noted the slope is now 3:1 with terracing at the midpoint and that they added stone water trenches in the benches.  He concluded that they are meeting stormwater standards according to Plymouth’s Engineering Dept.  He referred to plan and reviewed site distance calculations.  He noted the plans depict when leaving the site there is sufficient site distance and noted that the physical measurements are based on an as-built profile.  He concluded by stating the island will be removed so it will make turning more efficient.  

Atty. Danehey referred to June 13, 2014 letter from Kessler McGui8ness & Associates, LLC

Mr. Conroy asked how much a cubic yard of gravel sells for.  Mr. Churchill came to the podium and said according to John Moon of Kingstown Trucking the cost is between $1.50 to $2.75 – so average is about $2.00.  

Mr. Conroy asked how much it will cost to construct the fields that are being proposed.  Mr. Churchill said about $150,000.00.    

Public comment in favor:  Randy Parker

Public comment in opposition: Bill Abbott; Amy Schwartzman; Peter Schwartzman; Mike Carey; Doreen Klucevsek

The Chairman closed public comment.  

Atty. Danehey summarized facts of property - highlighting background and ownership.  He mentioned it’s a 2 star campground and the Petitioner would like to upgrade the campground because it’s failing.  He recapped his July 25, 2014 memorandum and letter.  He referred to Section 205.40 of the Bylaw.  He noted a Special Permit for the campground has been in place since 1968 so in essence what they are seeking is a matter of use.  He then referred to Section 205.18 of the Bylaw.  He referred to Bylaw and how this property is a conforming use.  He discussed Special Permit provision under Section 205-9B1 a thru d.  He discussed truck trips, traffic study, and mitigation and the impacts, if any, regarding each.  He reviewed matters regarding dust, noise, traffic, truck trips, and site distances.  He addressed slope stability, the 5% grade of the walking path, and parking.  He concluded by noting they would be amenable to a performance bond being a condition of approval of the Special Permit.  

Mr. Leary asked about environmental monitoring and discussed runoff.  

Mr. Main noted that the construction cost for the ballfields is approximately $100,000.00 and stated if the path wasn’t there it wouldn’t be necessary to extract so much gravel.  He referred to Beals & Thomas’ February 11, 2014 report, more specifically page 2, noting an elevation of alternatives to reduce extent of the cut.  He stated that the Petitioner has expressed that the gravel removal is incidental to the ADA path; however, according to Beals & Thomas review they note the path is incidental to the ballfields.  At which point Atty. Danehey disagreed with the Beals & Thomas review because it is their belief it’s not incidental.  Mr. Main noted that Ellisville Harbor is not ADA compliant.  Mr. Main referred to Massachusetts Case Law - 31 MA Chapter 46 – The Old Colony vs Plymouth Zoning Board of Appeals.  

The Chairman closed the public hearing.   

William Keohan stated that he would like to see the campground succeed, but felt that the proposed gravel removal, as presented, was not in harmony with the Bylaw.  Mr. Keohan did not feel that the gravel removal was “incidental to and required” in order to allow the recreational use to be expanded.  He believed the gravel removal proposal was excessive in relation to improving the campground; and, other options were not explored that would have been less aggressive.  

Edward Conroy agreed with Mr. Keohan’s comment in relation to the Bylaw.  Mr. Conroy referred to Section 205-18(F)(3) of the Bylaw where the amount of gravel removal is not allowed unless it is incidental.  He mentioned that the Petitioner has not proposed any feasible alternative and therefore, Mr. Conroy questions if the proposed excavation is incidental to enhance the campground.  He noted the Board has to consider the net effect of the incidental use to that of the primary use and evaluate the reasonableness of the relationship between the incidental area and the permissible primary use.  He did not believe the mining activity had a reasonable relationship to the recreational campground and the burden has not been met in this regard.  He believes the excavation needs to be minor in relation to the campground use.  He noted that the proposed gravel removal project is a major undertaking and the project cannot be said to be minor relative to the construction of the athletic fields.  Mr. Conroy stated that the net effect of the volume of the earth removed, and the scope of the removal project area are inconsistent with the character of the existing and intended recreational use.  He stated there may be alternatives to the path that have not been explored.  He does not believe this is a minor project and believes that under Section 205-18(F)(b) the burden has not been met to support the amount of gravel being removed to be incidental to or required.  Mr. Conroy referred to Section 205-9(B)(1)(c) and believes this project to be a hazard to pedestrians or vehicles and does not believe the burden has been met in this regard.  He also referenced 205-9(B)(1)(d) and believes this project will be a nuisance and have adverse effects upon the neighborhood.  He noted that there is a Special Permit in place for the campground so he did not believe this is a non-conforming use.  He did not support this project as presented.      

Michael Main agreed with Mr. Conroy.  Mr. Main discussed the word incidental and expressed that the use must not be the primary use but that which is subordinate.  He re-iterated Mr. Conroy’s comments regarding reasonableness of the relationship with regard to what is incidental.  He referred to Section 205-18(A), Section 205-18(D), and Section 205-18(F)(3) of the Bylaw and noted he did not believe the burden of proof has been met.  He stated that if Ellisville Harbor was ADA compliant and if Old Sandwich Road was a little less aggressive for someone who is disabled, he might support the walking path.  

David Peck stated he is willing to accept that recreational uses are allowable under Section 205.40(B)(1) and under Section 205-18(B) when incidental to and required in connection with an approved use, and that gravel removal is allowable if it supports an allowed use.  He did not hear compelling evidence why this (particular mix of use) would be incidental to the existing campground and secondly, the necessity of being ADA compliant.  He stated it’s an amenity but it’s not an absolute requirement for recreation fields.  He noted that he came up with 3 different ways of accomplishing this project with going 60 or 70 feet as opposed to 45 which is what is being proposed.  He referred to Section 205-18(F)(3) and discussed what is reasonably necessary.  He also discussed Section 205-40(A)(4) and questioned if this proposed project does more damage than need be.  He also referred to Section 205-59(C)(1), Section 205-59(G), and Section 205-59(H)(1)(a) and believed that this project does not meet Bylaw requirements.  Mr. Peck closed by stating he would not support this application as proposed.   

Pete Conner noted his concern because the Petitioner did not return to the Planning Board for additional review after being encouraged to do so.  Mr. Conner supported Mr. Conroy’s comments when he said it becomes more of a gravel mining operation and it would be detrimental to this area.  He concurred with the Board in their other comments and more specifically with regard to Section 205-18(F)(b).  Mr. Conner closed by stating there had to be a way to accomplish this project without having to remove so much gravel.  He was not in support of this request for the Special Permits.  

Mr. Main motioned to make recommendation to deny Special Permit for Case No. 3734 for reasons stated earlier.  Mr. Peck seconded.  

Denied unanimously (5-0)

Informal Hearing:       A.D.M. Cranberry Co., LLC - Case # 3728 – off Federal Road
        Review and satisfaction of Condition No. 1

Sitting:  Mr. Conner, Mr. Keohan, Mr. Main, Mr. Conroy, and Mr. Simpson

The Board received the following documentation* for review of this case:
  • June 25, 2014 Letter from G.A.F. Engineering
  • Narrative to Accompany Erosion Control Plans
  • ZBA Case No. 3728 Decision
  • Plans:
  • Proposed Cranberry Bog Development Plan – Erosion Control Plan dated June 25, 2014 – DWG. 1 of 4
  • Proposed Cranberry Bog Development Plan – Erosion Control Plan dated June 25, 2014 – DWG. 2 of 4
  • Proposed Cranberry Bog Development Plan – Erosion Control Plan dated June 25, 2014 – DWG. 3 of 4
  • Proposed Cranberry Bog Development Plan – Erosion Control Plan dated June 25, 2014 – DWG. 4 of 4
Bill Madden, GAF Engineering, representing Petitioner, recapped purpose for being before the Board.  He reviewed proposed plans for erosion control for all phases of the work and noted they are focusing on 60 acres of bog and alteration of 24 acres of land.  He highlighted one isolated wetland labeled D on the plan.  He reviewed first phase of erosion control.  He reviewed the truck access entrance.  He noted that the road is paved and water would be applied as needed to reduce dust.  He also referred to infrastructure and spoke about dike roads.  He reviewed berm around tailwater ponds and discussed the 2:1 side slopes and stated they will use an erosion control blanket/barrier as well as a silt fence.  He concluded by reviewing each phase block on the plan and discussed erosion control methods for each phase.  

Mr. Main motioned that Condition No. 1 of Case No. 3728 has been satisfied.  Mr. Simpson seconded.  

Granted unanimously (5-0)

Other Business:         Approval of June 18, 2014 ZBA Meeting Minutes

Mr. Main motioned for the Board to approve the June 18, 2014 Meeting Minutes as presented.  Mr. Peck seconded.

Agreed unanimously (7-0)

Other Business:         Approval of July 2, 2014 ZBA Meeting Minutes

Mr. Main motioned for the Board to approve the July 2, 2014 Meeting Minutes as presented.  Mr. Peck seconded.  

Agreed unanimously (7-0)

Other Business:         Case No. 3515 – Jeannine Anderson Realty Trust & P.A. Landers
                        143 Hedges Pond Road, Plymouth, Massachusetts

Mr. Conner discussed his concern of the possibility of more than 5 acres open.  

Mr. Main stated that according to GAF Engineering there was slightly over 5 acres exposed.  He too expressed his concern.  

The Board discussed their options.  

Mr. McAuliffe stated he believed they are in compliance and noted that the visible excavation from Rte. 3 is a road and that is depicted on the plan.  He also noted that the road was created so the Petitioner could reach the top of the excavation, as well as being able to reach his farm.  He noted that the face of the slope is not an issue and that the excavation is a horizontal plane and the slope is about 5 inches over.  He provided brief review of site conditions.  

The Board then discussed expiration of Special Permit.  

Mr. Keohan motioned for the Board to send a letter to Paul McAuliffe requesting the applicant/owner, through their engineer, provide a written stamped report on the exact size of the disturbed areas of the site (excluding the roads and tailwater recovery pond) and that said report be received within 21 days.  Mr. Main seconded.  Agreed unanimously (7-0)

Mr. Main motioned to adjourn the meeting.  Mr. Peck seconded.  Agreed unanimously (7-0)

*On file with the Zoning Board of Appeals in project case files.

Respectfully Submitted
Tracey McCarthy
Administrative Secretary

Approved:  September 3, 2014