APPROVED Minutes 6/17/10
Salem Planning Board
Minutes of Meeting
June 17, 2010
A regular meeting of the Salem Planning Board was held on Thursday, June 17, 2010 at 7:00 p.m in Room 313, Third Floor, at 120 Washington Street, Salem, Massachusetts.
Those present were Chuck Puleo, Chair, John Moustakis, Vice Chair, Mark George, Helen Sides, Christine Sullivan, Tim Kavanaugh, and Tim Ready. Also present: Danielle McKnight, Staff Planner, and Tom Devine, Recording Clerk. Absent: Randy Clark and Nadine Hanscom.
Approval of Minutes
The Minutes of June 3, 2010 were reviewed. Ms. Sullivan identified a spelling error on page 8.
There being no further comments, a motion was made by John Moustakis to approve the minutes of June 3 with revision, seconded by Mark George and approved 7-0. (Chuck Puleo, John Moustakis, Mark George, Helen Sides, Christine Sullivan, Tim Kavanaugh, and Tim Ready in favor, none opposed).
Final Endorsement of Plans and Execution of Covenant: DEIULIS BROTHERS CONSTRUCTION CO., INC., for a Definitive Subdivision Plan, 40 CIRCLE HILL ROAD, Salem, MA.
Ms. McKnight noted that the land court plan is the same as the approved plan, but with less detail. Mr. Puleo asked about the fence. Patrick Deiulis of Deiulis Brothers Construction Co., Inc., said he is open to whatever the neighborhood wants for the fence. Mr. Puleo noted the configuration of the curbing and said Doug Bollen would check it.
Mr. Ready asked if neighbors have been approached. Mr. Deiulis said there had been some communication seeking consensus, but it has not yet been reached. We will continue to approach neighbors and the planning department seeking consensus. The fence shouldn’t hold us up. Mr. Ready said the board recognizes the applicant’s willingness to give the community what it wants. You should conduct final negotiations through your councilor. Mr. Deiulis said he sees no issue with that and they will be happy to do what the neighbors want. Mr. Puleo asked if playground equipment will be put in when they are done. Mr. Deiulis said once the old slide is gone, a new one will be put in. Mr. Puleo asked if the playground will be sued during construction. Mr.
Deiulis said we don’t expect to interfere with the use of the playground. There will be a construction fence.
Mr. Puleo asked if a vote is needed. Ms. McKnight said the board only needs to sign the plan. Members then signed the plan and its copies.
Request of ANTHONY TIRO for permission to place cash in escrow to guarantee completion of road work on THOMAS CIRCLE, including installation of a guard rail, as part of the criteria for obtaining a Certificate of Occupancy for the final house in the development.
Ms. McKnight said the applicant requested putting cash in escrow and the department told him it would rather see the work completed. The applicant requested to ask the planning board and the department is ok with that. We have been talking to David Knowlton about outstanding incomplete items and made progress getting cost estimates for the remaining work. The City Engineer is on vacation now and unable to get through it all. The board would be voting on conditional approval—conditioned on Mr. Knowlton’s approval. There would be a time limit. Ms. Sullivan said what she hears is that the applicant came to the department and was denied, so he went around you. I want to know why the department said no. This is an unusual situation. I would want good
reasons to overrule the judgment of the department. Ms. McKnight said we talked it over and thought it would be fair for the board to decide. The department would be comfortable if approved with conditions. Yes, we initially denied the request, but we are comfortable with approval with certain conditions. Ms. Sullivan said you said no initially. Would you give the same answer if doing this again? Ms. McKnight said we’d would probably instead have the applicant go straight to the board. Mr. Puleo said he would like to have numbers with Mr. Knowlton’s backing. The applicant has had a fair amount of time to complete this. Ms. Sides asked when this was last before the board. Ms. KcKnight said it was amended in 2006. Mr. Moustakis asked if you know how much it will cost, why not just let him do it? Ms. McKnight said there is a tentative closing date and I think that is what the time sensitivity is about. Mr. Ready said it would be fair to say that the department, following
their review, decided to send it to the board without prejudice. Ms. McKnight confirmed this. Mr. Ready said this has been looked at administratively and denied without prejudice. The applicant could tell us why the work is incomplete.
Ms. McKnight said Mr. Knowlton has a list of what needs to be completed. Mr. Tiro has estimates, but Mr. Knowlton needs to approve each item and its estimate. Mr. Ready asked if Mr. Knowlton is comfortable with the total sum of money or is he concerned about the individual line items? Ms. McKnight said he needs to approve individual items and their associated details.
Anthony Tiro, the applicant, said approximately 6 weeks ago I contacted Mr. Knowlton and informed him that I had put under agreement the 4th and final house. I asked him if he could do a review of outstanding items because I might not be able to finish remaining work by the closing date of June 25. The buyer qualifies for an expiring tax credit. Mr. Knowlton went over the outstanding items with me and asked for numbers with quantities, and I provided all he would need. I added documentation to this with prices from those who would provide the work. The reason why some work is incomplete is because we wait to finish the road until after the final house is sold. I didn’t know that I was required to do some of the work. I have already accomplished some of the
items. Mr. Puleo asked which items he didn’t know he had to do. Mr. Tiro said he didn’t agree with all of them. For example, I simply had to demonstrate that certain things were there.
Mr. Tiro read aloud from Mr. Knowlton’s list of outstanding items. Mr. Puleo asked about the removal of boulders from the easement. Mr. Tiro said it has been completed. Ms. Sides said the scope of the work is much greater than just paving and a guardrail. What is the timeframe? Mr. Tiro said the completion date would be November 15. Ms. McKnight said money would come from escrow then if nothing is completed. Ms. Sullivan said that would be another year without a road. Ms. Sides said there must be some priority to this. Three houses are already occupied? Mr. Tiro responded affirmatively. Ms. Sides asked if the road is paved. Mr. Tiro again replied in the affirmative. Mr. George said you didn’t know about some of this. Mr.
Tiro said he thought some of the items were already satisfactory. It is all being done. Ms. Sullivan noted that some of this language is from 4 years ago and goes back to a 2006 decision. I am not sure how it could come as a shock. Ms. McKnight said Mr. Knowlton’s language was for the approved plan. Ms. Sullivan said that what Mr. Knowlton asked for Tuesday was asked for in 2006. Maybe I’m not reading this right. Ms. Sides said the Mr. Knowlton may be determining things from the plan that were not in Mr. Tiro’s memory or understanding. Mr. Tiro asked which document they are looking at. Ms. McKnight said it is a draft approval. The decision wouldn’t have that language, but the plan would, and this could explain some discrepancies and misunderstandings.
Mr. Ready said before we get too deeply into the vagaries of Mr. Knowlton’s world, there are some outstanding items. The developer has met with the engineer and reviewed and come to agreement over the items, some of which the developer is concluding. The developer is prepared to put down a sizeable piece of money to ensure work is done by Mr. Knowlton’s standards by the date discussed. The purpose of the meeting is to put money on the table to ensure work gets done. Ms. Sullivan said the purpose of the meeting is to allow the closing date to happen in time. Mr. Kavanaugh asked which items will be completed before the closing date. Mr. Tiro said read through the list of items. He pointed out that Mr. Knowlton mistakenly though a city sewer was the responsibility of
the developer. Mr. Puleo noted that the list stated that the stone doesn’t comply. Mr. Tiro said Mr. Knowlton wants bigger stone. Mr. Kavanaugh asked when that will be completed. Mr. Tiro said it will be done before closing. He said that the berm, brick, and mortar issues are already done. The roadway issues can all be done as soon as we resolve the guardrail issue. I am working with Mr. Knowlton on the location. Mr. Puleo asked about ledge removal in lot 3. Mr. Tiro said it has been priced. He described the condition as it applies to the plan. Mr. Puleo read road details from the plan and asked if there has been inspection during installation. Mr. Tiro replied that there has been. Mr. Puleo asked if that is documented. Mr. Tiro said it is. Mr. Puleo read details from the plan regarding the easement. Ms. McKnight said the easement hasn’t been accepted, so we should include
that in the cost estimate. Mr. Tiro said Mr. Knowlton wants the easement to go with the new homeowners. Ms. McKnight said she thinks the language should cover it. Mr. Tiro said he would acquiesce to that. Mr. Tiro identified the easement on the plan.
Mr. Puleo asked for Mr. Kavanaugh’s view on the language. Mr. Tiro described the plan to Mr. Kavanaugh. Mr. Kavanaugh said it has to be in the deed and the buyer has to accept it. The owner needs to know that they have perpetual responsibility. It is not a problem and will be binding if done properly. The applicant’s attorney should give the deed to the department to verify it.
Susan Howland, 3 Thomas Circle, submitted a letter to the board. Mr. Puleo asked if this is in front of her property. Ms. Howland said there is no easement and read aloud from her letter. She asked that the city condition the plan so no sale would happen until road work is completed. There has been discussion with the City Solicitor over the deed change. I was willing to deed this to the developer or the city with the understanding that Mr. Tiro would be responsible for getting this done and paying all associated costs. Mr. Tiro has yet to do this. He has had 7 years to address the property line issue. It does not seem right or fair for Mr. Tiro to be granted this request.
Ms. Sullivan asked why this hasn’t happened. Mr. Tiro said he didn’t know this existed before 2006. Ms. Sullivan asked about the transfer of land. Mr. Tiro said it has to be initiated by the homeowner. Mr. Kavanaugh said this was covered last time. Your attorney needs to speak to her or her attorney and prepare an easement for her to sign. She said she wouldn’t bear the expense and your attorney has to get the ball rolling. This is a minor item and it is easy, but land court is harder. Getting the easement from the neighbor is not the hard part. Mr. Tiro said he agrees with all of this but thought the homeowner had to initiate it. Ms. Sullivan said that Mr. Kavanaugh has told you that your attorney was to sort all this out. It appears
that you have not progressed with that. Mr. Tiro said he thought it had to go before the City Council to be accepted. Mr. Kavanaugh said it would go exactly the other way. You would build the road and then you or your attorney would talk to your councilor and ask the city to accept it for the purpose of a public way. Mr. Tiro asked what happens if the city doesn’t accept it. Mr. Kavanaugh said they vote to accept it if they want it and they are taking it from the homeowner. You would be notified and she would lose ownership as it becomes a public way.
Mr. Ready noted that Mr. Tiro is getting free legal advice. Mr. Tiro needs to consult with his attorney and follow guidelines from the last meeting. You should meet with neighbors and do this before coming back here. Mr. Puleo asked how much work is there to do in this small space. Mr. Tiro said it is very little. Ms. Sullivan said she won’t grant permission as it stands now.
Mr. Kavanaugh said the memo says the homeowner seeks to ultimately convey the land to Salem. It says that even though Mr. Tiro agrees to pay for the process, it is subject to council approval. We are talking about conveying it directly to the city of Salem. Mr. Kavanaugh asked what the disposition of the land would be if the city does not accept it as a road. Who is responsible for it? The homeowner and the developer do not want to be responsible for it. No one has filed anything so we don’t know if they are willing to accept it or not. No one wants to be on the hook for a piece of land that hasn’t been accepted by the city in the event of some future liability. This is still a sticking point.
Mr. Moustakis asked who is responsible to move this along. Mr. Kavanaugh said the memo talks about the homeowner’s desire to have no liability. With the easement, Mr. Tiro would improve the parcel, get it accepted, and then there would be a petition to get the city to take ownership and be liable for it. Mr. Tiro said he agrees that the owner has to initiate the process. Mr. Puleo said the original decision states that the developer has to make a good faith effort to acquire the easement. Mr. Kavanaugh said the owner will grant it, but Mr. Tiro won’t accept it without the guarantee that it would be accepted. Long ago, a developer would create a corporation that would petition the city to accept the road. If the city refused, the corporation, not any individual,
would be liable.
Alexandria Pasquale, 19 Thomas Circle, expressed concern about the drainage basin’s dimensions, which could be off by a foot. I have flooding problems and want to know what impact this will have on her residence. Mr. Puleo noted that Mr. Knowlton has a condition for a 1 foot berm. Ms. Sullivan asked if the numbers work out. Ms. Sides noted that the berm is in height, not width. Ms. Pasquale said there is not room for another foot. It would go into my property. Ms. Sullivan stated that with an extra foot in height, water will have trouble getting in. Mr. Ready said this is a clarification issue that needs to be addressed to the neighbor’s satisfaction.
David Mackey, 2 Sunset Rd., said he sees a lot of issues with the project. $25,000 is a questionable amount for completion of the road. The roadway is in a state of total disrepair. Mr. Tiro said the amount for the road work is $50,000. Ms. McKnight said this is subject the City Engineer’s approval. The dollar amount will not be voted on tonight. It would be up to David Knowlton.
Mr. Kavanaugh said that even with these numbers, the crux of the matter is the roadway. The only way you can widen it would be to accept the easement, improve the roadway, and you and the homeowner petition the city to accept it. There is no guarantee the city will accept it. Nothing we are discussing will solve this problem. Either we accept that the road is narrow or we insist that the applicant take the liability. Mr. Puleo asked if the road is 20 feet wide everywhere else. Mr. Tiro described the roadway on the plan. Ms. McKnight said the department’s understanding is that it would remain 14 feet wide in that location if the easement doesn’t happen.
Richard Williams, 3 Thomas Circle, said he used to serve on this board. When we approved a plan, it was the plan we would abide by. He presented the plan to the board. Mr. Puleo confirmed that it is the same plan Mr. Tiro has. Mr. Williams stated that the plan shows a 20 foot roadway throughout. Mr. Puleo remarked that the language of the decision gives further clarification. Ms. Sides said she is not comfortable approving this. Ms. Sullivan said she is also uncomfortable approving this. Ms. Sides said there are too many unanswered issues. Mr. Tiro said he has answered everything in Mr. Knowlton’s June 15 memo. Ms. Sides said she is not comfortable with the phrase “in good faith.” Mr. Tiro asked Mr. Kavanaugh for further details about
the easement process. Ms. Sullivan said you must take leadership to solve the issue. Mr. Puleo said you should go through you councilor and see if he is willing to bring this before the council. It is an easy issue. Mr. Tiro asked Mr. Kavanaugh if he thinks the homeowner must start the process. Mr. Kavanaugh said your attorney has to speak with her. Mr. Ready said the issue before us is a matter of escrow, but I think a decision would be premature without a final walkthrough from the City Engineer.
Mr. Ready said he would like to motion to continue the request pending input from the City Engineer, since we do not have enough information. Mr. Kavanaugh asked Ms. Howland if she would give the easement. Ms. Howland answered yes, as long as I don’t bear the cost I am willing to grant the city the easement through him. Mr. Kavanaugh asked if she would be willing to execute a document if the council or the attorney came to her asking for the easement. Ms. Howland said yes, as long as it is guaranteed that it will happen, however it can be arranged legally.
Mr. Kavanaugh said the homeowner is not willing to give the easement unless the road is widened. So Mr. Tiro must accept the easement and do the work, or the homeowner would have to give it to the city and Mr. Tiro would make improvements on behalf of the city. Mr. Ready said the issue before us is one of escrow. We are far ahead of this. I would motion to postpone the request pending input from the City Engineer. Give all parties a chance to resolve outstanding issues. Ms. Sullivan asked if we can table it. Mr. Puleo said if we don’t have enough information, we are within our right to table it.
Mr. Tiro said he has met with the engineer on numerous occasions. I put a price to each item requested. I think it is unfair to put this burden on me. I have the legal opinion from my attorney. He says not to accept it. Ms. Sullivan says he is not listening. Ms. Sides said with what has come to light, she doesn’t feel certain that Mr. Knowlton has adequately addressed this issues that the neighbors have raised. I need to know that the engineer has reviewed it and truly signed off on it. Mr. Tiro asked if an approval could be subject to Mr. Knowton signing off on it. Ms. Sullivan said you are asking us to rush through something because you have a deadline in a week. Mr. Tiro said he first made the request 6 weeks ago.
Kathleen Sullivan, realtor, asked how long the easement process could take. Mr. Puleo said that with a councilor involved, it could be fast. Ms. Kathleen Sullivan said the house has been under agreement and the buyer wants to get the tax credit. Mr. Puleo said we have heard the discussion. Mr. Tiro asked if the plan requires him to pave 14 feet if the easement doesn’t materialize. Mr. Puleo said he needs to make a good faith attempt. My understanding is that a councilor would get involved. If you exhaust that and the council said there isn’t support for it and it looks like a difficult thing to do, that could be a good faith attempt. But we haven’t gotten that far. I understand if you don’t want the liability, but I think it needs to go
through the city council process. Mr. Tiro asked why that is stopping the work that must be done. Mr. Puleo replied that it was part of the original decision. Mr. Tiro asked if you could put a dollar amount on that and have it put in escrow.
Mr. Ready stated that we are meeting again soon. Ms. McKnight said this could be added to the agenda of our upcoming special meeting. Mr. Kavanaugh said this is the first time we are hearing that your lawyer said you shouldn’t take on the liability. That should have been addressed earlier. This could have been worked out. Mr. Puleo said we have a June 28 meeting following our joint hearing with the City Council. We could take this up then. You could see if your councilor would support it and we could be notified by then. Mr. Ready said that in the interest of the buyer interested in moving into our city, you will find that the board is open to new information, but we need that information and Mr. Knowlton’s input.
A motion was made by Tim Ready to continue the request at the June 28 meeting, seconded by Mark George and approved 6-0. (Chuck Puleo, , Mark George, Helen Sides, Christine Sullivan, Tim Kavanaugh, and Tim Ready in favor, none opposed; John Moustakis was out of the room.).
Continuation of Public Hearing: Request of KENNEDY DEVELOPMENT GROUP, INC. for Site Plan Review, Planned Unit Development Special Permit, and Wetlands and Flood Hazard Overlay District Special Permit, for the property located at 440, 460, 462, and 488 HIGHLAND AVENUE (Map 3, Lots 1, 2, 3 and 4), Salem MA (proposed new Lowe’s Home Improvement retail store, new, expanded Walmart store, expanded Meineke store, Camp Lion improvements and new municipal water tank). Attorney Joseph Correnti. Applicant requests to continue to July 15, 2010.
Ms. McKnight submitted the applicant’s letter to the board.
There being no further comments, a motion was made by Christine Sullivan to continue the Public Hearing at the July 15 meeting, seconded by Helen Sides and approved 7-0. (Chuck Puleo, John Moustakis, Mark George, Helen Sides, Christine Sullivan, Tim Kavanaugh, and Tim Ready in favor, none opposed).
Public Hearing: Request of KENNEDY DEVELOPMENT GROUP, INC. for a Wetlands and Flood Hazard Overlay District Special Permit for the property located at 488 HIGHLAND AVENUE (Map 3, Lot 1), Salem MA. Applicant requests to continue to July 15, 2010.
Ms. McKnight explained that the applicant was withdrawing the original filing and re-filing the special permit application.
There being no further comments, a motion was made by Christine Sullivan to open the Public Hearing at the July 15 meeting, seconded by Mark George and approved 6-0. (Chuck Puleo, John Moustakis, Mark George, Helen Sides, Christine Sullivan and Tim Kavanaugh in favor, none opposed; Tim Ready was out of the room).
Old/New Business
Mr. Puleo stated that he intends to recuse himself from the upcoming joint hearing on the zoning amendment. Members discussed logistics of the hearing. Ms. Sullivan asked if a quorum is needed. Ms. McKnight said yes, and she expects to have a quorum even without Mr. Puleo’s participation.
Adjournment
There being no further comments, a motion was made by Mark George to adjourn, seconded by Helen Sides and approved 7-0. (Chuck Puleo, John Moustakis, Mark George, Helen Sides, Christine Sullivan, Tim Kavanaugh, and Tim Ready in favor, none opposed).
Meeting adjourned at 9:21 p.m.
Respectfully Submitted,
Tom Devine
Planning Board Clerk
Approved by the Planning Board 7/15/2010
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