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Planning Board Minutes 10/21/09

P.O. BOX 602
(508) 696-4270


DATE:                   October 21, 2009        

TIME:                           7:05 P.M.

PLACE:                  Town Hall Annex

ATTENDANCE:             Duart, Peak, Seidman and Stephenson
ABSENT:                 Aldrin

BILLS:                  Patricia Harris...................................$879.60
                                Patricia Harris (Reimbursement)…..$  10.99
                                Verizon……………………………..$  36.82
                                Petty Cash (Postage)………………..$   6.15
                                Thomson Reuters…………………..$168.00
MEETING MINUTES:        As referred in the September 9, 2009 Meeting Agenda
                                2 September 2009        Deferred
8 September 2009       Deferred
9 September 2009       Deferred
16 September 2009      Deferred
30 September 2009      Deferred
7 October 2009         Deferred
14 October 2009         Deferred


7:10 PM Charles Gilstad re Estate of Edward & Alice Franklin (Land Court Plan), AP 14A15

Mr. Gilstad submitted a slightly modified Form C Division of Land previously endorsed by the Planning Board on December 17, 2009 for Land Court. Mr. Gilstad mentioned that the plan illustrated the new locations of the bounds, and the road, as it was built.

Mr. Peak referred to the Board’s December 17, 2008 Decision and noted that the applicant did not comply with a few of the conditions listed. He advised Mr. Gilstad that the Planning Board that the applicant did not submit the Form F Covenant, and the specifications of the traveled surface material at the expiration of the 20 day appeal period. The applicant’s agent also failed to submit written verification certifying the construction of the road, and the installation of the underground utilities according to the surveyor’s specifications.

Mr. Peak therefore recommended withholding their signatures until Mr. Gilstad submitted the information. In the interim Mr. Peak offered to inspect Finley Lane on the board’s behalf, and to call Mr. Gilstad if there was an issue with the traveled surface.

7:20 PM Marcia Cini re:Sheryl Schrader – Warner Street Realty Trust, AP 15J6, 50 Warner Street

Mrs. Cini, Ms. Schrader’s legal representative indicated that she was interested in holding an informal discussion on a plan of land developed by Brooks Billingham, that she wanted null and voided.

Mrs. Cini indicated that her client wanted to covert the garage into a guesthouse, but did not have the land area to meet the town’s minimum lot area requirement. At the surveyor’s suggestion the applicant revised her property lines to include the land area up to the centerlines of Warner and Hawkins Streets.  They learned from Town Counsel that her client could not add the square footage she needed for the guesthouse through the derelict state statute (Sears vs. Building Inspector of Marshfield).

Since then, she’s searched the titles and discovered that the halves of both roads (Warner and Hawkins Streets) were not conveyed to the applicant as they were intended to be. The previous owner is more than willing to convey this to his client, which could be resolved through a confirmatory deed. Her association on the other hand, thought it was a much involved process, which would require Land Court’s blessings.

She asked the Board if it would make a substantive difference to them if she simply relied on the confirmatory deed or submitted a revised plan illustrating the actual deeded boundaries. Either solution would resolve the issue presented by the Sear’s Case.

Discussions ensued with regards to the developer’s i.e. Sure Oil & Chemical Company’s failure to convey the roads, and the adoption of the Derelict Fee Statute to fix the title to these roads. Mr. Peak was of the impression that the applicant could not incorporate the land area reserved for a road easement because it contradicted the purpose for zoning.

Mrs. Cini was of the opinion that deeded land area to the centerline of a road was not the same as having it by default, according to the operation of law. It was not an issue addressed by the Sear’s Case Law.  Mr. Peak thought it was a matter that they had to refer to town counsel.  

Board members discussed the subdivision control, and situations encountered in their own developments, where homeowners owned an interest in the subdivision road, etc.

Mr. Duart inquired about the purpose for the confirmatory deed. Mrs. Cini replied that it was intended to correct an error in the previous deed. It appeared to her that the previous owned did not realize he owned to the centerline of both roads, and simply forgot to convey them the current owner. Ms. Schrader. Mr. Peak thought it was a bit more complicated, because almost every deed he read within the development said that the property owner had the right to use all ways. It was his opinion that the roads’ ownership was of no consequence, because the road was set-aside for a specific purpose, of which many people have rights to go over it.

Mr. Duart inquired if the Planning Board had the right to grant exceptions in instances where the development was created prior to the adoption of the subdivision control law. Mr. Peak noted that their decisions in ANRs bore no effect on zoning. The lot lines were bounded by a street.

Mrs. Cini referred the Board to the definition of a lot area in section 2 of the Zoning Bylaws. Mr. Peak noted that the Sear’s case defined a lot to the edge of the road, otherwise they’s have to the parameters, which would have other impacts to their zoning regulations. Mr. Peak reiterated that the deeds for the properties within the development he’s managed to read indicate “that the lots go to a bound on the easterly side of … road”.  He added that it would also impact the applicant’s frontage, which would be relocated to the centerline of the road. It raised more questions that he could not answer. There were other issues he had asked about in his letter to town counsel that he could not recall at the moment.  The one that came to mind was whether or not the abutters had the right to extinguish the road, because the deed holders had the right to use every road in the development.  

Mrs. Cini noted that if she would to pursue the research, she’d restrict he search to the deeds issued by Sure Oil & Chemical Company.

Mr. Duart inquired if they should refer the matter to town counsel.  Mr. Peak noted that they had already requested a legal opinion on the matter, when the applicant submitted her application. Town Counsel stated that while the Planning Board could endorse the proposed plan of land with the addition of a notation stating that the plan’s endorsement did not stay the enforcement of the town’s zoning regulations.

Mrs. Cini was advised that the plan was endorsed in February 2008.  She questioned whether she should approach the problem differently and approach the Zoning Board of Appeals. Mr. Peak advised that he would have to speak against the proposal.

Mr. Stephenson believed that in order to respond to Mrs. Cini’s question, the Board had to know the town’s or Planning Board’s policy about calculating a lot’s square footage. Mr. Peak replied that the zoning regulations define a lot as having frontage on a street, and frontage is defined as a road lying along a property line of a lot. In this instance the applicant would have to prove that she has a right to include the property.

Board members inquired about their next step.  Mr. Peak noted that they had already endorsed the applicant’s plan of land, and did not need to do anything further. The applicant had to present her proposal to the Zoning Board of Appeals.

1.      Tashmoo Overlook
RE: Power Point Presentation

Postponed until next week.

2.      Zoning Bylaw Amendments

Board members were advised that the Zoning Board of Appeals has submitted four (4) potential bylaw amendments for the board’s consideration.  They were recommending the addition of a definition for detached bedroom and structural connection.

Mrs. Barbara was particularly interested in increasing the number of dwelling units permitted in the BII District without the need for a special permit, and in increasing the size of the accessory apartment within the R10 District.

Mr. Stephenson suggested inviting the ZBA to their meeting on October 28, 2009 to discuss the bylaw amendments they are recommending to the Planning Board. He thought they should also add the Waterfront Commercial District onto the list, so that they could develop language that would them some flexibility to make a determination about the uses. He wanted a little more latitude in their decision making process.

Mr. Stephenson added that the MV Commission has been working on a 3-Dimensional digital model of the Downtown Area of Vineyard Haven. They’ve promised to make a presentation of the model, and thought we should contact them to see if they could do so at the Planning Board’s meeting on November 4, 2009.

Mr. Peak thought they should consider adding a streetscape bylaw to address the parking issues and the U-shaped driveways that cut into the streetscape. Mr. Stephenson agreed.

3.      Conflict of Interest Law

Board members were advised that they were required to take the training course on line and to complete the questionnaire. Copies of their certificate of completion were to be submitted to the town clerk and the Planning Board’s office.

4. Vineyard Haven Yacht Club
RE: Memorandum of Understanding

Mr. Stephenson reported sending Mr. Greg Stevens, the yacht club’s Commodore a draft copy of the Memorandum of Understanding he created.  He noted that he received a response from Mr. Stevens the other day expressing an interest in pursuing the arrangement, under the following conditions:
a.      That there is a two year limit on the agreement, and
b.      That either party can revoke the agreement at any time.

Mr. Stevens conveyed the impression that there was a possibility that the decision to enter into this arrangement may not require the Board of Director’s consent, since it did not involve the sale of purchase of land. If that was the case, he and the Executive Board could enter into agreement with the town on the yacht club’s behalf.

Mr. Stephenson sent Mr. Bugbee a copy of the memorandum to refer to town counsel, and has not received any communication from since August 2009.  Mr. Stephenson asked the Board Secretary to contact Mr. Bugbee and to ask him if he had sent the memo to town counsel, and if he’s received any comments.  If not, Mr. Bugbee was to be asked to follow through on the request.

Board members inquired if the Board of Selectmen could enter into the agreement without having to raise the subject at town meeting.  It was noted that all negotiations involving the use of town land had to be voted on at town meeting.

5. Chapter 40B Work Session

Mr. Seidman reported that he could not locate the Howes House on the night of the workshop, and did not sight any activity to give him the impression that they were holding any workshop in the immediate vicinity of the address he was emailed.

The Board Secretary received an email from Mr. Veno the following morning, noting that the MV Commission did not obtain the key to open the Howes House for the workshop, and as a result had to cancel the meeting.  Apologies were forward to Mr. Seidman, with an invitation to attend the following workshop (Roles and Responsibilities of Planning Board Members)  on November 12, 2009 for free.


1. Anthony A. Esposito, PE
RE: Resume

2. MV Commission
A.      Ocean Plan Information Session & Discussion – 10/21/09 @ MVHS Cafeteria @ 6:30PM
B.      Public Hearing – Island Wind District/Oceans Zone (DCPC) on 11/5/09
C.      Traffic counts for Union Street
D.      Cancellation Notice – 10/22/09

3.  Larry Gomez - Tisbury Finance & Advisory Committee
RE: Invitation to meeting on 10/22/09 at 6PM in Senior Center to discuss ESF

The Finance and Advisory Committee sent Mr. Peak an invitation to attend their meeting on 10/22/09 to add to the discussions about the funds being requested for the Emergency Services Building.

4. American Planning Association
RE: Zoning Practice, October 29, 2009


Tisbury Board of Selectmen’s Meeting on 10/20/09 @ 5:30 PM in the KCT
A.      Vote on Jeff Thompson’s membership on the board
B.      Mike Mauro’s presentation – Traffic Counts for Union Street

PRO FORM        Meeting opened, conducted and closed in due form at 9:15 P.M.           (m/s/c  4/0/0)          
Respectfully submitted;
Patricia V. Harris, Secretary

APPROVAL:       Approved and accepted as official minutes;

______________          _________________________
Date                    L. Anthony Peak