Wellfleet Planning Board
Minutes of the Meeting of October 2, 2002
Town Hall Hearing Room
Present: Dennis O'Connell, Chair; Lisa Brown, Helen Miranda Wilson, Alfred Pickard, Gerald Parent, David Wright, Mark Berry; Rex Peterson, Assistant Town Administrator
Chair O'Connell convened the meeting at 7:00 p.m.
Preliminary SD #02-04; David S. Johnson, 130 Long Pond Road, Wellfleet; Lot #148, Assessor's Map #15; 4 lots proposed. (Gerry Parent disclosed that he had sold the land adjacent to this parcel.) Chet Lay of Slade Associates presented the proposal. The parcel is located partly in a residential and partly in a commercial district; however, Lay stated that the lots would be deed restricted to residential. Helen Wilson asked how long a deed restriction lasts; Gerry Parent stated that the law says that "unspecified" deed restriction means 30 years, and Linda Canty, from the audience, informed the Board that the Johnson parcel's deed restriction will be specified for 50 years.
Chet Lay explained the 14-foot paved road into the subdivision, which will provide access to all lots. The road will follow the existing drive for about 50 feet and then curve to the west, with an existing grade of about 11-12%, which Lay would like to leave as it is, and then ends in a level cul-de-sac at the top of the grade, between Lots 1 and 2. A 20-foot wide easement provides Lots 2 and 3 access. Lot 3 is a 24% grade, but they have done a switchback there.
Lay discussed the frontage issues: Lot 2 has frontage on Route 6 and Long Pond Road and Lot 3 has frontage on Route 6. He cited a plan of land in Truro with similar problems of frontage on Route 6 but different access. Lay noted that Building Inspector Asmann considers the subdivision's Route 6 frontage "illusory"; he added, however, that the state would issue curb cuts and that he expects to get a letter to that effect in connection with the similar Truro plan. Helen Wilson commented that she had talked with Bill shitty of the Highway Department in Taunton who stated that the state does not deny curb cuts but does issue conditions. Lay added that the state would like to minimize curb cuts.
Lay commented that they had been site specific in dividing the 7-acre parcel into 4 building lots. He invited the Board to visit the site with him; concurring, the Chair and Gerry Parent both made the point that the surveyor should accompany the Board on all site visits. (Site visits are to be held on the Tuesday morning at 9 a.m. before the Wednesday meeting in which the proposal will be heard.)
Chair O'Connell asked if there were an advantage or disadvantage to using a way over aneasement; Lay indicated not. Helen Wilson asked why the circle had not been taken all the way into the parcel, giving all lots frontage? Lay replied that a paved road all around Lot 1 would push the Lot 3 building site around the hill. Gerry Parent commended the plan for more-than-adequate footage. Helen Wilson stated that Lot 2 has a steep grade both off Long Pond Road and the highway and asked why not increase the road rather than have an easement? Lay stated that the plan was legal as it existed. Lisa Brown stated that she liked the idea of 4 lots out of 7 acres and added that if the cul-de-sac were placed in the middle of the parcel and the building sites moved,
the houses built on the lots adjacent to the highway might be seen from the highway; she saw an advantage in their not being seen.
Linda Canty informed the Board that Fire Chief Alan Hight had gone up to the site and that his only wish was to see Lot 1's larger trees cut back.
Rick Asmann asked if the restriction to residential was a deed restriction and stated that private deed restrictions were not enforceable by the town. Chet Lay answered that this restriction could be placed in the Covenant.
Asmann also asked whether Planning Board had the right to waive frontage requirements, adding that it must be proven that the frontages are not illusory. Lay responded that they could meet Asmann halfway in regard to the frontage. Helen Wilson reiterated her suggestion that the cul-de-sac serve all four lots; neither Mr. Lay nor the Chair concurred with her suggestion.
The Chair asked if Planning Board should do anything about access, and Lay replied that the only concern would be whether the Route 6 frontage is illusory. This concern, he continued, should be alleviated by a letter from the State stating that it would issue curb cuts. Lay added that he would have something in writing before Planning Board approved the subdivision.
David Wright recapped: Planning Board could restrict commercial use in the parcel by deed restriction and restrict the lots from using Route 6 as access (which would produce "illusory" frontage).
Lay stated that he will be requesting a waiver as to grade for the first 100 feet of the driveway and a waiver on the width of the pavement.
Gerry Parent asked if adjacent lots 201.1 and 201.3 would be given legal access to the subdivision driveway; Lay answered affirmatively. Helen Wilson, discovering that her neighbor Kevin Rose was a co-owner of those lots, recused herself from further discussion. Parent asked, concerning the request for the waiver on grade, whether it was possible to reach a 10% grade. Lay replied that they wished to leave the grade "as is" since it was for a very short distance and flat on top.
The Chair asked whether a property owners' agreement existed; Ms. Canty stated that one would be drawn up.
Parent asked the width of the easement driveway to Lots 2 and 3; Lay answered it would probably be 10 feet wide. Parent commented that if the Board granted approval on the plan, it was knowingly granting access to Lots 2 and 3 without laying out specifications for the easement drive. Comment was made that a Homeowners' Association Agreement would take care of this. Parent stated that he would like to see, either in the Covenant or the Homeowners' Agreement, some specifications for the width, etc. of the access--something on which the Fire Department and the Building Inspector would agree. Lay suggested that specifications for a 14 foot road, either graveled or hardened, could be put into the Covenant, with Lots 2 and 3 not to be released until this was done.
It was agreed that Mr. Lay and the Board would have a site visit to the property on Tuesday, October 15, at 9 a.m., the Board to meet at Town Hall Parking Lot and to meet Lay at the site.
Diana Crooks ANR. Mr. Lay informed the Board that, in the matter of the ANR for Diana Crooks on Kelley Road, a curb cut has been applied for to widen the Kelley Road entrance to the width of 21 feet including berms. This has been designed so that two cars can fit in the entrance and should answer an earlier concern voiced by the Chair and Helen Wilson. Lay will bring back to the Board the state permission when it arrives.
Discussion of Multiple-Use Zoning with Building Inspector Richard Asmann. Gerry Parent recused himself and left the meeting. (This discussion came out of agenda order at the end of the meeting.) Mr. Asmann distributed some pertinent information: articles entitled "Split Lots" from Land Use Manager, November 1988 and "Split Lot Entitled to Separate Lot Protection" from Land Use Manager, October-December 1998. He commented that the preliminary subdivision at which the Board had just looked was split zoning. Asmann stated that the question is whether 200 foot frontage or 500 foot frontage is needed for lots; he discussed this in connection with Tom Adams' property.
Asmann cited his 8/6/02 memo to Rex Peterson regarding by-law revisions, stating that his concern was to provide both flexibility and control (to more than one principal building, more than one principal use). He added that the problem exists in restricting to just one specific use category. In illustration of this, electrician Tom Adams described his proposal to construct a building which would combine a working area (walk-out basement) and office (first floor) with apartment(s) (upper floor) which he could rent to people who worked for him. He noted that auxiliary affordable unit regulations would not work for him if he were renting to a licensed electrician.
Helen Wilson disclosed that Tom Adams had done some work for her. Since this was a commercial lot with a business on the lot and Adams proposed to add another business, she asked if a special permit could be issued for the second use. Asmann replied that this was not allowed under the current bylaw; Wilson commented that she would back doing it by special permit. Mark Berry felt that residential use over a commercial building should be by right and that it should not have to be affordable; Asmann responded that this should not be by right, since in 15+ years no one would hesitate to build a residence without a special permit. Alfred Pickard stated that in the past, if the zoning book said "permitted," one could put "12 P's" on the lot if one
wished.
Further discussion followed; topics covered included:
Allowance by special permit of 4-5 different buildings in Post Office Building; agreement by Town Counsel in 1989 that this was permitted; recent opinion by Betsy Lane that WHAT Theater is not allowed according to zoning bylaw definition of "lot."
Restrictions on multiple use zoning: special permit, specific finding for approval (e.g. scale of neighborhood); question of limiting such zoning to certain districts or to permitted sections in each district.
Necessity for affordable homes; argument for affordable condominium-type homes. Suggestion that multiple uses be restricted to those uses allowed by special permit or by right in underlying districts.
Encouragement of residential use without blocking out multi-family dwellings; note of fact that septic regulations cause difficulty with construction of multi-family dwellings.
Short supply of moderate-income properties in Wellfleet; question as to whether it can be dictated that an owner must build affordable housing. In this regard, Lisa Brown commended Tom Adam's willingness to contribute to solving the housing dilemma in his hometown with his proposal. It was noted that the trade businesses need to look out for their own members' ($40,000-$60,000 annual income) housing; also remarked was that insistence on developers' building affordable housing forces them to be landlords.
Bylaw discussion: Rick Asmann pointed out that another change is needed, that 4.1 (5) would have to be conditioned "except as provided for in Section 5.4.6 of these bylaws." Suggestion of specific findings along with special permit--it was noted that specific findings are already set forth in 8.4.2.2.
Helen Wilson wished the Board to consider the fate of affordable accessory dwellings when considering multiple-use zoning such as Tom Adams' proposal set forth. Building Inspector Asmann did not believe Adams' proposal and Wilson's aspirations were that far apart; however, he did not want to restrict all affordable housing to rental CDC guidelines.
Rex Peterson proposed working with Asmann's definitions (8/6/02 memo) to see how the combinations worked regarding allowed uses and uses by special permit. The Chair was not sure that this was necessary; Asmann suggested just going with a special permit; Tom Adams commented that they basically self-regulate along with the town bylaws. Helen Wilson noted from her experience on the ZBA that the Zoning Board would be very careful about dual use; the Chair commented that a special permit would get multiple use. Asmann completed the discussion by asking the Board to consider whether it wished to leave these decisions entirely to the ZBA. The Board thanked the Building Inspector and Tom Adams for their effort and contribution to the discussion.
Cell Tower Building Permit. Mr. Asmann, referring to the Nextel cell tower on Gross Hill Road, discussed the building permit controversy. His opinion is that all 5 carriers on the amended Cape Cod Commission plan can be allowed to go up on the tower, since all equipment is shown on the plan. Town Counsel Barbara St. Andre states the antenna arrays are allowed but that the carriers have to apply for special permit to turn them on. Chair O'Connell stated his conclusion that anyone on the 100 foot pole could transfer existing arrays, and if they wanted to do anything different, they would need to come before the Board. ATT Telecorps needs a special permit because they haven't located on the old pole. Rick Asmann suggested contacting carriers who have no equipment on the 100 foot
pole or want to locate different equipment on the new pole to inform them that they must come before the Board. The Board suggested that Assistant Town Administrator Peterson contact these carriers. Other discussion elements:
The Board should know specifics of carriers locating on the pole
The "friendly Planning Board" should talk with them up front--give them a "heads up"--this communication involves ATT Telecorp and BAM/Verizon
Barbara St. Andre's letter is not clear as to which carriers have the right to install but not be turned on; it may apply to Nextel but not to the other carriers
Nextel as owner of the tower has the responsibility to ensure that its locators come before the Board.
Helen Wilson suggested that the Nextel court decree be read before the next meeting.
Planning Board Representative for Harbor Planning Group. Chair O'Connell informed the Board that the BOS has asked that Planning Board nominate one representative (see 9/4/02 minutes) to the Harbor Planning Group. He asked both Alfred Pickard and Mark Berry whether they wished to discuss their credentials.
Pickard stated that all of his waterfront business has gone out on bid and is leased for a finite length of time (fuel concession, pier store); he has slip lease, as do others in the room; his other business is on Holbrook Avenue, not the waterfront. Helen Wilson returned to her earlier discussion of the Conflict of Interest Law. O'Connell pointed out that Pickard, if chosen, would complete a disclosure form. Pickard reiterated that he had stated in the minutes that he had completed a Form 19B.
Berry stated that his position was unchanged: if Pickard could not serve because of conflict of interest, he would like to do it. He has experience in that area.
Helen Wilson moved that Planning Board send Mark Berry to serve on the Harbor Planning Group; David Wright seconded. Berry and Pickard asked if they were allowed to vote; Wilson thought they were not. David Wright asked whether conflict of interest applied in this instance, since Pickard would not be voting to make decisions but would be supplying his expertise. Pickard, disagreeing with Wilson concerning his conflict, stated that the review of the disclosure form should decide whether there was a conflict. Chair O'Connell stated that his interpretation was that Pickard did have a conflict but that Form 19B should decide this; he added that even if Pickard were not on the Harbor Planning Group, he hoped that he would provide the committee with information. After some further
discussion, the motion was called; it passed, 5-0-2 (Pickard, Berry). Lisa Brown stated for the record that there was no personal bias in the choice but that the appearance of conflict of interest was too strong.
Minutes of 8/20/02 and 9/4/02. David Wright moved and Helen Wilson seconded approval of the 8/20 minutes as amended; passed 6-0-1. Helen Wilson moved and David Wright seconded the approval of the 9/4 minutes as amended; passed 6-0-1.
Other Business
Lisa Brown informed the Board that Arthur Croce had told her that he had completed the Board's recommendations for L. D. Baker Estates and wished the return of his surety check for $25,000.
David Wright stated that Wilson, Peterson, Berry, and he had attended the transportation meeting at the Seashore Center and that he will be a member of the Seashore Shuttle Committee.
Chair O'Connell moved that the Board enter Executive Session; David Wright seconded. Helen Wilson said aye, Mark Berry said aye, Alfred Pickard said aye, Dvid Wright said aye, Chair O'Connell said aye, Lisa Brown abstained. The Board entered Executive Session at 10:02 p.m. and re-entered open session at 10:05 p.m.
Helen Wilson brought to the Board's attention Fire Chief Alan Hight's underground water storage tanks and suggested their use for developments. She informed the Board that she was now on the Watershed Action Team.
Mail. The Chair reviewed the mail, noting that Town Counsel Betsy Lane would conduct a meeting on 10/15/02 at 7:00 p.m. at the Library, the focus of which would be the legal responsibilities and limitations of board membership. Also noted were a Citizen Planners Training Collaborative Workshop on 10/30; Helen Wilson plans to attend, and the secretary will get all the information to other members as soon as possible. Another workshop, sponsored by the Mass Federation of Planning and Appeals Board and also featuring Don Schmidt, will be held in Worchester on 11/2/02; the topic for this is 40B.
Lisa Brown moved adjournment; Mark Berry seconded; the meeting was adjourned at 10:10 p.m.
Respectfully submitted,
_____________________________ ____________________________
Frances J. Castillo, Assistant to the R. Dennis O'Connell, Chair
Committee Secretary
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