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Planning Board Minutes 06/05/2013

P.O. BOX 602
(508) 696-4270
Fax (508) 696-7341


DATE:           June 5, 2013
TIME:                   7:05 PM

PLACE:          Town Hall Annex

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

BILLS:          Petty Cash……………………………….$  20.00

MINUTES:                As referred in the May 15, 2013 Meeting Agenda
                        15 May 2013     Deferred

7:00 PM Kenneth Barwick, Re: BII District Zoning Bylaw Amendment  (NO SHOW)

7:05 PM   House Business

1) Mr. Thompson, the Planning Board’s representative on the MV Land Bank informed the board members that the organization could now track all of their properties on a GIS coordinator.
2) Mr. Peak on a visit to the MV Commission’s office was given the impression that Stop & Shop’s hearing may have been scheduled on June 20, 2013. The Commissioners at a LUPC meeting on June 3rd questioned whether they could advertise the hearing for the twentieth if the application was incomplete.

Mr. Peak asked the board secretary to contact Paul Foley, the DRI Coordinator at the MV Commission to inquire about the actual hearing date. If the hearing was in fact to be held on twentieth of June, he thought they should meet on June 12th, in addition to their scheduled meeting on June 19, 2013 to give themselves ample time to discuss Stop & Shop’s revised proposal.   Mr. Stephenson and Mr. Thompson were asked if they were in accord with the recommendation.  Both gentlemen responded in the affirmative.

The board secretary was to contact the board members with the information as soon as possible.

Mr. Peak also noted as having spoken with Mr. Israel about the Planning Board’s concerns and about the possibility of a joint meeting. He was advised to contact Mr. Grande, in whom the Board of Selectmen have conveyed their concerns and opinions with this project.  The board secretary was instructed to contact and invite Mr. Grande to the meeting on June 12th, if Stop & Shop’s proposal was going to be heard on June 20, 2013.

The board secretary noted that in a conversation with Mr. Foley, he mentioned that the applicant had conveyed to him that there was a good possibility that they would not be prepared by June 20th. He strongly suspected that the hearing was going to be postponed as late as July 11, 2013. The MV Commission’s current extended meeting schedule reflected the new date.

7:25 PM   Douglas Dowling, Form A Division of land AP 23A38, 23A39 and 23A42

Mr. Dowling submitted a schematic illustrating a property line adjustment involving three abutting properties that were created in a subdivision on Lantern Lane. The motivating force behind the proposal was Mr. Dowling’s plan for an addition to his house.

Mr. Dowling mentioned that he had purchased his home on Lantern Lane from Ed Perry in 1976. Mr. Perry, the previous homeowner constructed the house sometime in 1974/75, approximately 12 feet from the road.  The Town of Tisbury purchased the adjoining lot for water protection in 1971. Mr. Dowling explained that the existing footprint had expanded with a couple of additions, but that he wanted to tear down the extensions and replace it with an addition that was congruent with the shape and size of the house. The proposed renovations however did not comply with the setback requirements of the zoning district.

Mr. Dowling sought to remedy the zoning violation by redesigning the road layout for Latern Lane at the curve closer to a forty foot wide layout. The change gave him and the two abutters additional land area, and to some degree additional linear frontage, except for the property owned by the Town. The Town’s parcel of land, as revised would lose the linear frontage to meet the zoning district’s minimal dimensional requirement. It rendered the lot non-buildable, should the land ever be decommissioned for water protection by the Tisbury Water Works Department.

Mr. Dowling explained that the land area he and fellow abutters gained would be designated as a utility access easement, until such time every one with rights of access agreed and signed to abandon the portion of the road. Once every stake holder was onboard, they would essentially establish the utility access easement. Board members were referred to the notation on the plan.

Mr. Stephenson inquired if the town did not have an issue losing its access from Lantern Lane. Mr. Dowling inferred that the town would no longer have to pay its share of the road maintenance fee, if it did not have any access on the road.  Mr. Peak understood that the Water Commissioners had a question about the maintenance fee. He also thought the town had an access easement in the rear of the lot.  Mr. Dowling noted that it was a water main easement.  He added that the Water Department did not have any plans to utilize lot. In fact they couldn’t because the lot was purchased by the town specifically to protect its aquifer. A good portion of the lot was within the 400 ft. zone of contribution.

Mr. Dowling noted that the abutters to the road owned the land right to the centerline by Massachusetts Law.  He was proposing to move their rights, or abandon their rights to the fee up to the revised road layout. The revised road layout gave him the additional land area he needed to move ahead on his addition without encroaching on the district’s minimum front yard setback requirement, and the abutters gained additional land as well. Mr. Dowling mentioned all but one of the Water Commissioners did not have an issue with his proposal.

Mr. Dowling clarified for the record that he was simply proposing to modify the right-of-way to the access easement. The rights of the abutters were preserved until they agreed to release their rights. If they opted against a release, his only option was to pursue the matter in court, since they owned the land to the centerline. Once the other property owners relinquished their rights to the portion of the road layout, the additional land became their (the town, the abutter on AP 23A38, and Mr. Dowling) private property. Mr. Dowling reiterated that they already owned the land.  He also explained that he needed an additional six (6) ft. of land to comply with the setback requirements with the addition.

There being no further comment, Mr. Dowling asked the Board if they had any issues with his proposal. Mr. Peak noted that the town had to decide whether or not they wanted to relinquish their frontage. He did not think the Planning Board could endorse the proposal, until everyone with an interest in the road agreed to relinquish their rights. If they endorsed the plan, the Board would essentially be reassigning those rights.

Mr. Dowling replied that the abutters’ rights were safeguarded by the notation on the plan, which was read into the record. Mr. Peak disagrees, and recommended referring the matter to town counsel, along with the Water Works Department’s issues. Mr. Dowling countered that the notation on the plan was intended to protect the abutters’ rights.  Mr. Peak noted that if the abutters did not agree to relinquish their rights, the existing road layout could not be altered. He added that Mr. Dowling could not use the easement to satisfy the setback requirements, because court cases have affirmed the fact that property owners could not use the land area to the centerline of the road to change the size of their lot for purposes of zoning. Mr. Dowling concurred. Mr. Peak noted that until all parties with an interest in the road relinquished their rights, he could not alter the road layout. Mr. Dowling disagreed, and referred to a handout he submitted to the Board entitled  Supreme Judicial Court Dramatically Alters Law Governing Rights Between Landowners and Easement Hodlers (REBA Filed Brief in Case).  

Mr. Peak was familiar with the case, and commented that the court case did not pertain to the proposal, because it upheld a landowner’s right to relocate an easement that burdened his property without the consent of an easement holder. The road layout was not an easement.  Mr. Dowling thought that was the question, because the road was not an approved layout by the Planning Board.  Mr. Peak replied that the road layout was on a subdivision plan and part of every abutters’ deed.

Mr. Dowling agreed and read an excerpt of the deed “ Together with  a right of way over the 40 ft. Way shown on said Plan from the granted premises to the Massachusetts State Highway in common with the others entitled or who may become entitled to use said Way. “
Mr. Dowling interpreted the language to state that everyone had access over a 40 ft. wide way from their domiciles to the Mass. State Highway. Mr. Peak noted that the width of the subdivision road varied at certain sections. He did not think anyone had a right to redefine the layout. Mr. Dowling disagreed.  Mr. Peak reiterated that it was not an easement. He questioned the belief that one had a right to alter the road layout to the centerline of the road, simply because they owned the land area to the centerline of the road.  Mr. Dowling clarified that the modification preserved a 40 ft. wide layout that is required for subdivision roads. It did not eliminate anyone’s right to traverse the road to gain access to their properties. Mr. Peak was not prepared to endorse a plan without consulting town counsel. A signed plan could be recorded and imply that the Planning Board sanctioned the transfer of rights, without having the authority to do so.

Mr. Dowling believed all subdivision roads created prior to the adoption of the subdivision control law were “easements”.  They were not approved road layouts. Mr. Peak noted that the subdivision law recognizes these roads.

Additional discussions ensued and Mr. Peak clarified that ANR plans were not meant to create easements. He did not approve of easements, and the Board’s not endorsed them as a policy.

Mr. Dowling asked the Board if they would consider endorsing the plan, if town counsel confirmed that in endorsing the plan, the Planning Board was not relinquishing anyone’s rights. Apart from the legal concern they had, he wanted to know if there were any other technical issues with the proposal. Mr. Peak though it was important to have a signed agreement by all three parties immediately effected.  Mr.  Stephenson noted that they also had to make sure that the town’s interests were protected, since the proposal substantially reduced the frontage on Lantern Lane.

Mr. Dowling asked for an opportunity to speak with Town Counsel to clarify the details of his proposal. If Counsel did not think the Town could accept the proposal, he would abandon the project.   


1. Elections & Appointments for 2014 – Deferred until next meeting

2. Stop & Shop

Mr. Stephenson reported having a ‘series of conversations’ with several individuals who have expressed an interest in the impact Stop & Shop’s proposal may have in the immediate vicinity and surrounding business districts.  He prepared a set of notes summarizing the topics of his conversations with these individuals, and disseminated copies of his notes to the board.

He thought it interesting that in his conversations, everyone came to the conclusion that Stop & Shop’s proposal warranted a thorough analysis of the proposal’s impact beyond the immediate area. Mr. Stephenson thought they should extend the analysis to include the area from State Road to Union Street, and the waterfront to Main Street.

Mr. LaPiana, the DPW Director recommended a “Vehicle Management Plan (VMP)” that surpassed the typical computer modeling of traffic volume and routes. Mr. LaPiana explained that the study included an analysis of  truck, bike, taxis, buses and pedestrian flows for a more comprehensive management plan. Similar studies have generated recommendations for new routes (i.e. buses) and services (metered vs. leased parking spaces at the old fire station property on Beach Road). It was Mr. LaPiana’s impression that Stop & Shop should be asked to conduct the study at their cost, and offered to approach Mr. Grande to solicit the Board of Selectmen’s impressions and support.

Mr. Stephenson also learned that the Board of Selectmen had contacted consultants to study the parking lot’s management options, which could be a part of the VMP.  

Mrs. Doble inquired if Mr. Stephenson had an idea about the number of cars one could park at the old fire station property. Mr. Stephenson replied at least twenty, but they had to provide access to the motel’s parking spaces in the back.   He also mentioned that they also had the land area to add ten to fifteen feet to the path that led to the park on the property, and create a nice tree lined corridor for pedestrians.

Mr. Stephenson understood the town had agreed to map and acquire an easement on Cromwell Lane. Mr. Peak inquired about its purpose. Mr. Stephenson could not respond and noted that Cromwell Lane had been identified by the MV Commission as a potential Shared Use Path.

Mrs. Doble inquired if the town had a protocol of sorts in place whereby these type of proposals were brought before the Planning Board for comment.  Mr. Stephenson replied in the negative, although he agreed that it would benefit the town to have some procedure in place to facilitate conversations between the town boards.

Mrs. Larsen, the  Finance & Advisory Committee’s representative to the Planning Board inquired about the Cabinet’s role.  Mr. Peak indicated that the Cabinet no longer met monthly. They had reduced the scope of their address and met on a quarterly basis. They canceled their last meeting for lack of quorum.

In conversations with Mr. Israel and others, Mr. Stephenson decided to abandon his recommendation to retain Water Street as an access for truck loading, because he could not solicit any support for his proposal. The issue was not with Stop & Shop’s trucks, but with the other vendors’ who were not subject to a fixed schedule with Stop & Shop.

Mrs. Doble inquired if Mr. Stephenson in his notes implied  that the comfort station had to be removed or relocated to accommodate Stop & Shop’s trucks. Mr. Stephenson replied in the affirmative. She noted that in the following paragraph, Mr. Stephenson highlighted the fact that this may not be possible because the east half of the building housed the pumping station and other utilities. Mr. Peak thought it could be relocated underground. Mr. Stephenson acknowledged, but felt it was much more complicated.

Mr. Stephenson continued with his presentation to state that while Stop & Shop’s building was going to be three stories tall, it did not project into the skyline of the town. The visual impact was going to be up close. It was important for the applicant to understand that they had to provide a streetscape that accommodated pedestrians, and bikers. They could accomplish this by providing adequate and wide sidewalks, shade trees, outdoor furniture and landscaping. It concerned him that the applicant, Stop & Shop has been unwilling to change their plans to work with the town, yet quick to re-arrange the town’s parking lot to accommodate their own plans.

Mr. Stephenson indicated that he met with one of the applicant’s architect, Chuck Sullivan to discuss Stop & Shop’s proposal, and realized that he was not as intimately involved in the project. The only information Mr. Sullivan could provide Mr. Stephenson was that the applicant had hired a consultant to study the roof’s potential for generating solar energy.

In the last topic to be discussed, Mr. Stephenson believed Stop & Shop was no longer thinking of tearing down the 200 year old house, and considering other options.

Mr. Peak thought the town had “the right to decide legitimately the extent to which they were going to reinvent themselves to accommodate a particular development”.  He explained that the Town of Freeport insisted that MacDonald’s had to place its restaurant in a Greek revival house and advertise its establishment with a very small sign, and MacDonald’s acquiesced.

Mrs. Doble expressed frustration with applicant’s presentation, which was limited to the building and automobiles. It concerned her that Stop & Shop failed to address with its proposal anything relating to pedestrian space, or connecting to the pedestrian spaces in the village, and was going as far as to propose the elimination of the only pedestrian scale landscaped space in the whole area. The Vehicle Management Plan in this instance should be pursued because it forced the applicant to address “things other than cars”.

3. Christopher Dias – Form C Subdivision, Holmes Hole Road (Deferred)

4. Black Dog Tavern Co Inc, AP 07E06

Mr. Stephenson and Mr. Peak have been communicating with the Steamship Authority and Black Dog about the gate, and believe that both parties were in agreement with the details. They feared the project would not move forward, unless they prepared the written agreement and had both parties sign.


1.  Douglas Dowling, PLS
RE: Town of Tisbury/Water Company, et al. (Form A Plan of Land)

2. MVC Extended Schedule
RE: 31 May 2013 Extended Schedule

3. Department of Environmental Protection
RE: Comcast NE Div. & NSTAR Electric Co (Waterways License – construct & maintain a hybrid communications and electric cable via Vineyard Sound)

PRO FORM        Meeting opened, conducted and closed in due form at 9:20 P.M.           (m/s/c  3/0/0)          
Respectfully submitted;
Patricia V. Harris, Secretary

APPROVAL:       Approved and accepted as official minutes;

______________  _________________________
Date                    L. Anthony Peak