MINUTES OF WESTBOROUGH PLANNING BOARD
February 16, 2016
Regular meeting of the Westborough Planning Board held in the Forbes Municipal Building in the Room 23, 45 West Main Street. Members Bush, Silverberg, Diamond and Spencer were present. Member Ed Newton, Jr. was absent.
Meeting dates: March 08, 2016 and March 22, 2016
At 7:00 p.m. the Board prepared to open the Public Hearing on a Town Meeting Article to amend the Zoning Bylaws by amending Article 4, Special Regulations, Section 5300, Senior Living Overlay District (SLO), Subsections 5340 and 5390; and by amending Article 5, Definitions, regarding Independent Senior Housing; by amending Article 2, District Regulations, Section 2600, Dimensional Regulations Schedule, Subsection 2610 for the Senior Living Overlay (SLO);p and by amending the Westborough Zoning Map to add the Senior Living Overlay District (SLO) to the Mixed Use District (MUD).
Chairman Brian Bush read the legal advertisement that ran in the Worcester Telegram and Gazette on January 9, 2016 and February 05, 2016 into the record.
Green Cards are fine.
Chairman Brian Bush asked the Town Planner to give an overview of this Article.
The Town Planner said the purpose of this amendment is to promote and facilitate additional options for the redevelopment of certain portion of the former Westborough State Hospital and other State owned properties, known as the Mixed-Use District (MUD). It will provide opportunities for senior housing in a setting with open space and recreational activities nearby. It furthers the Town’s plan to provide a diverse and creative reuse of the State Hospital property. This zoning change is recommended by the State Hospital Reuse Committee and the Planning Board.
Chairman Brian Bush said he is Chairman of The State Hospital Reuse Committee and this Article was initiated by State Hospital Reuse Committee. We also want to add a provision that projects in the SLO shall comply with Subsections 245.D.2-5 except that these requirements shall not apply to SLO projects in the Mixed-Use District (MUD). In the Senior Living Overlay District (SLO) proposals in the MUD District, the special permit granting authority (SPGA) shall require the Design Review Board to provide a recommendation to the SPGA on the SLO proposal during the plan review process. Under Article 5, Definitions, one household member must be over 55 years of age and no resident can be 18 years or younger. We also proposed an increase of lot acreage from 2 acres to 5 acres.
The Town Planner summarized the reason that members of the State Hospital Reuse Committee were not in favor Design Review Board being in charge of design is because they do not want this property to look like the downtown They would like the choice of maybe having a more modern look instead of looking just like the downtown district. Give flexibility and creativity to
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the developer. DRB would review the exterior of the building, review external lighting and windows. Proponents will have freedom with the style.
The Town Planner said Section 5390 is currently under DRB in the downtown business but will add the requirements under the MUD district and shall require the DRB to give recommendation to the Planning Board who is the special permit granting authority to make the decision.
The Town Planner said Article 5 – Definitions: the new definition of Independent Senior Housing is changing that someone must be at least 55 years old, not requiring health services and permanent resident can be 18 years of age or under.
The Town Planner said Article 2 – District Regulations, Section 2600 Dimensional Regulations Schedule, must be changed to 5 acres to be consistent with state statute. We need 5 acres for a SLO project.
Member Mark Silverberg said by going from 2 to 5 acres, he wonders where that interpretation is coming from.
The Town Planner explained that the state statute changed. We had our Town Counsel write the Article in 2010 and at that time 2 acres was state statute. This is why we have to change it from 2 acres to 5 acres to meet state statute. If someone ever appealed our bylaw, we have to be in accordance with state statute.
Member Mark Silverberg asked what acreage has to do with it. This limits the allowance of building in the SLO.
Chairman Brian Bush said the Town Planner did get correspondence with Town Counsel on this subject. We wanted to change to over 55 years of age to open up the SLO to more people. It was brought up there is nothing in our bylaw prohibiting a younger person living there which is why we have put in that persons 18 years or under are prohibited from permanent residency. He thinks the way this article has been written is reasonable.
Member Bill Spencer asked are we being fair to the intention of the SLO.
Chairman Brian Bush said the SLO is an empty nester community. There are plenty of people who are 55 years of age with children. The intent of this bylaw is for people who are downsizing. The state hospital is a great place for SLO district with walking trails the lake, etc.
The Town Planner reminded the Board that they must also approve the zoning map.
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Chairman Brain Bush said first map shows the SLO district currently and then shows the MUD district we are proposing for the state hospital. It also takes into account all state owned property.
Member Mark Silverberg motion to support the Town Meeting Article for the Senior Living Overlay District as written in the Annual Town Meeting Warrant. The motion was seconded by Member Charlie Diamond and unanimously voted.
Member Mark Silverberg motioned to close the Town Meeting Article for the SLO public hearing. The motion was seconded by Member Charlie Diamond and unanimous voted.
At 7:40 p.m. the Planning Board met informally with representatives from Toll Brothers on Westborough Village Special Permits regarding basements.
Attorney Diane Tillotson, Mr. Greg Kamedulski, Group President for Toll Brothers, Mr. Shawn Nuckolls and Mr. Derek Wheeler were present for discussion.
Attorney Diane Tillotson said they are here tonight to see if we can get suggestions to dissolve the finished basement issue. It is a problem for Toll Brothers and is a problem for the homeowners. The project has always been represented to have finished basements. We were denied a building permit relating to the finished basement. Note 5 in the T-OV Zoning Bylaw appear in the dimensional requirement notes for Section 4200 regulating multi-family dwellings. Note 5 in that section are intended to prohibit separate basement apartments below ground in multi-family buildings. She interprets it for stacked units and not for single residential or townhouses. There are several legal issues if you interpret it as the Building Commissioner did. The Building Commissioner’s
decision renders the Westborough Bylaw inconsistent with the State Zoning Act under Chapter 40A, Section 3, second paragraph that says “no zoning ordinance or bylaw shall regulate or restrict the interior area of a single family residential building”. This is a direct regulation or restriction on the interior space of a single family home and you can’t grant a bylaw more restrictive/prohibiting. A bylaw has to be reason based. Since the State can overturn local zoning, the Building Commissioner’s decision will be reversed or appealed by the ZBA or court action. We are here tonight to resolve this issue in a way that we can present to you a reasonable condition on a waiver that will allow us to finish out the basements and we need guidance as to whether this is a possibility. There is an appeal on hold with the ZBA on March 7th and we will pursue that appeal if necessary. If we can work something out and give
you something you are looking for, we are happy to discuss that. Again tonight we are looking for guidance. We sent out a letter late today outlining our thoughts and concerns. We are willing to answer any questions.
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Chairman Brian Bush remarked that he did get the letter tonight. Last week, Mr. Greg Kamedulski and Mr. Shawn Nuckolls met with the Town Planner, Member Mark Silverberg and he. Chairman Brian Bush said he was not allowed to sit on the last hearing because of a direct conflict of interest with the former Attorney. Toll Brothers has to withdraw their Special Permit modification without prejudice. What will be different in the new application? Mr. Shawn Nuckolls said the modification was getting too restrictive. At that meeting we explained that Members Mark Silverberg and Brian Bush could give their opinion but they should have the whole Board for comment We went over the issues that were most important to us. He thinks timing could impact Toll Brothers. We
can’t meet until March 8th. We have town elections that day for a new board member. The member leaving has personal reasons. We might be a 4 person board for awhile and then the Board of Selectmen and Planning Board will be pick our new member. This is something to keep in mind. The sentiment of the residents came out at the last meeting of the public hearing. Members Charlie Diamond and Bill Spencer are here tonight to listen to your concerns.
Member Mark Silverberg said a write-in candidate needs only 10 votes. If they want to be on the March 8th agenda you would have enough time.
Mr. Greg Kamedulski said we are here tonight to restate our legal position and restate our argument and also get a sense from the Planning Board if their offer is acceptable or not acceptable. We want to get the sense if whether the offer made a couple weeks ago is still acceptable. We can go through the ZBA or we will pursue litigation against the Town. They don’t want to do this because it’s bad for the Town, Toll Brothers and the home owners. But they will pursue this avenue if necessary. We would love to get this resolved to everyone’s satisfaction.
Chairman Brian Bush said the Planning Board is not in a position to make a decision tonight so we can only give guidance.
Mr. Shawn Nuckolls said they would like to address the basement issue to their satisfaction by waiving Note 5, excluded bedrooms, parcel interconnection between adjacent parcel Westboro Commons with Westborough Village; PILOT payments of $15,000 for 5 years to offset the commercial building not yet built; a curb cut added at Smith Valve Parkway for handicap access. The gate issue has been resolved
Member Charlie Diamond asked what other points were brought up by Toll Brothers in the recent meeting.
Chairman Brian Bush questioned is the Planning Board the appropriate venue to hear this request or the ZBA. He would like to get Town Counsel to look into this. That was probably the only thing that was not previously discussed.
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Member Mark Silverberg said they talked about the timeframe on the PILOT as to whether 5 years was long enough. There are a lot of things we can’t make them do because it is too late in the project.
Member Charlie Diamond said we can address the PILOT and extend the timeframe longer than 5 years. What happens if they are not done in the 5 years? He feels that should be addressed.
What if you don’t develop anything commercial in 5 years? What will happen for recourse for the Town? The per-student cost is $12,000-$14,000 per child. He would like to see some sort of offset for the Town in taxes. He does not know an amount, he is not a lawyer. Can you provide a tenant for the commercial building?
Member Mark Silverberg said if you look at the next project under this zoning, he is doing 40% commercial. In exchange for what we were told by Toll Brothers that by reducing occupants and students, we allowed them to only have to build one commercial building. What happens in 5 years if not built? The land taxes are minuscule to what we expected in cost for all the students. The idea of a T-OV village is mixed use and not just residential. That is one of the things we have been harping on since day one, He feels like the Town is at risk. There are a lot of flaws in the original permit that needs to get fixed.
Mr. Greg Kamedulski said we are pursuing the building of the commercial building. You are looking at the worst case, if it does not get built in 5 years, what you recommend for a timeline on the PILOT program.
Member Charlie Diamond mentioned that several meetings ago, multi level with SLO was discussed. That was compensation.
Mr. Shawn Nuckolls said this not something he is willing to do and the area is not 5 acres.
Mr. Greg Kamedulski asked is it fair to say that if a building was built within 5 years, you would be comfortable with the proposal of a PILOT program?
Member Mark Silverberg responded that if the building is built you don’t need the PILOT program. The discussion would go away on the PILOT program.
Member Bill Spencer asked what is the age of this project permitting.
The Town Planner responded the original Special Permit was granted in 2006 to a different developer and in 2010 was amended for Toll Brothers.
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Member Bill Spencer noted that he just read the legal position. The thinks one issue is basements and then they are tacking on other items in the proposal. Would it not be better to separate the issues; basement as one; the tax issue as another?
Attorney Diane Tillotson the legal issue is only with the basements. She thinks that this Board is not the Board to make the interpretation on this but the ZBA. However, they are afraid to do this. We want to seek a modification on this by way of a waiver that would help the Town. She is only addressing the legal issue.
Mr. Greg Kamedulski said they are offering the conditions that Mr. Shawn Nuckolls originally asked for.
Member Mark Silverberg said that it is hard to separate the issues of PILOT and interconnectivity.
Member Charlie Diamond said we did once discuss breaking up these requests.
Chairman Brian Bush explained that we would do this in the decision as conditions. We would then vote on them.
Member Bill Spencer asked why is there a curb cut request?
The Town Planner said there is a curb that needs to be cut to make it handicap accessible.
Member Bill Spencer said the residents in Westborough Village are tax payers in Town and we will take this into account.
Member Charlie Diamond asked you will be seeing the ZBA first.
Attorney Diane Tillotson said timing is an issue. We want to get the basements finished. There is no reason we couldn’t go to the ZBA on the interpretation issue. The interpretation issue, even if they uphold the Building Commissioners interpretation, you could still give us a waiver.
Mr. Greg Kamedulski said we are here tonight to talk and if there seems to be guidance on the conditions offered, we would put the ZBA hearing on hold and come before the Planning Board.
Member Mark Silverberg said we have two issues that we need Town Counsel recommendation. If we were to grant a waiver now would it only apply to future units or all units? If Town Counsel says yes, would you have to reference the Special Permit in each owner’s unit deed?
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Attorney Diane Tillotson said it is an enforcement issue. The Building Commissioner was not interpreting the Bylaw that way at the time. The only question is the Building Commissioner going to enforce the new interpretation against their built basements.
Member Mark Silverberg said if you come back in and resubmit, it will have to be taken into consideration as the same issues, there are flaws in the original permit. Whether or not at an actual hearing, if we have new data, speakers, there is a compromise to be reached.
Attorney Diane Tillotson said the issue in respect to the PILOT she has heard. Are there other issues to be heard? We can’t do anything more with the affordability component.
Chairman Brian Bush said the Planning Board will not go back to the affordable component.
Mr. Greg Kamedulski said the curb and the interconnectivity are both acceptable. We just need to settle the PILOT issue. Is it fair to say if we resolve the PILOT issue that this Board would look favorably on granting the waiver, subject to Town Counsel review?
Member Mark Silverberg said he might be inclined to grant it.
The Town Planner said the plan provided by Waterman Design Associates should be considered. Just look at the plan. It showed grading to allow the two parcels to connect. Please explore it further. See if it can be handicap acceptable.
Chairman Brian Bush encourages them to pursue their options. He will have the Town Planner reach out to Town Counsel. You are the first project in a new overlay zoning district. The idea was to create something that was transit oriented with mixed-use. He has no interest in seeing a vacant commercial building built. We are going through a learning curve. The idea was to have an opportunity to negotiate. The developers who build homes have a right to give their presentation and be heard.
Mr. Greg Kamedulski said at last week’s meeting someone said the PILOT Program can’t go on for infinity. He hears 5 years is not acceptable if building is not built. What about 8 or 10 years?
Member Charlie Diamond said we may not want an empty building. The zoning says mixed use. It was put at the end of the project.
Mr. Shawn Nuckolls said the initial permit showed the commercial building to be at the end.
Member Mark Silverberg said if you build the building it will probably go up in value if you build it and there is no demand, the taxes will go down. Is this mixed use concept a viable concept? He thinks there are enough units in Westborough Village to support the uses.
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Mr. Greg Kamedulski said we are working on that. If the commercial building doesn’t get built, what might be acceptable if the building is not built?
Member Charlie Diamond responded monetary motivation.
Member Mark Silverberg agrees with Member Charlie Diamond that he wants to see it built sooner than later.
The Town Planner advised the Planning Board not to discuss this any further tonight. He will reach out to Town Counsel for recommendation.
At 9:00 p.m. the Board prepared to continue the Public Hearing on the Downtown Planning Overlay District (DPOD) Rules and Regulations. (See attached minutes)
State Hospital Update:
Chairman Brian Bush said he has a meeting next Thursday on the State Hospital. He thinks the article is good to go. The access road to the Allen Building currently goes through the parking lot. Our proposal was to relocate to the south side so the parking lot came near the ball field. The state is okay with that but will not pay for it and neither will the Town. The RFD will go out to the developer and if they want to relocate the road it will be at their cost. The problem with it now, is not in best location. It might be worth a developer to pursue this.
Chairman Brian Bush said we are waiting for Town Counsel for the Memorandum of Understanding and formalize the recommendation on the access road. We hope to get a good real estate market coming up.
Member Charlie Diamond asked are you looking for property value 5 or 10 years out.
Chairman Brian Bush said this depends on what the project is that comes forward.
Board Vacancy:
Chairman Brian Bush wants to discuss vacancy on the Planning Board. Member Ed Newton, Jr. has not pulled papers. He will not be running. Two people who have expressed interest in this position. Both are excellent. If you don’t have a write in candidate, then it is a joint selection by both the Board of Selectmen and the Planning Board. Anyone interested in this position needs to go to the Town Clerk so she gets their information.
Member Mark Silverberg said they should also contact Kate Donahue for sponsoring Candidate’s night on February 21st at the Willows at 6:00 p.m.
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The Town Planner said tomorrow night is the Citizen’s Training Academy presentation night at the Fire Department. This is part of the Town’s effort to attract participation from its residents in Town government. The Town Manager asked each Department to provide an information session for the public where residents can learn about possibilities for public service. He is giving a presentation about the responsibilities of the Planning Board, Town Planner and Design Review Board.
Member Bill Spencer said that Corridor Nine is hold an information session breakfast at Double Tree on Thursday morning.
The Town Planner said the revised warrant is now available online.
There being no further business to discuss, the meeting adjourned at 9:00 p.m.
Respectfully submitted,
Sandy Spinella/Administrative Assistant
APPROVED:
--------------------------------------------------- -----------------------------------------------------Brian Bush, Chairman of Board Mark Silverberg, Vice-Chairman of Board
------------------------------------- ---------------------------------- -----------------------------------
Edward Newton, Jr. Charlie Diamond William Spencer
RULES AND REGULATIONS FOR
DOWNTOWN PLANNING OVERLAY DISTRICT (DPOD)
February 16, 2016
Pursuant to the Rules and Regulations for the Downtown Planning Overlay District (DPOD) of the Town of Westborough, a public hearing was held on Tuesday, December 01, 2015 and continued on December 15, 2015, January 05, 2016, January 19, 2016, February 02, 2016 and February 16, 2016 to consider the establishment of the Planning Board’s Rules and Regulations for the Downtown Planning Overlay District (DPOD) as required under the Town of Westborough Zoning Bylaws, Section 4900.
Chairman Brian Bush said that the Town Planner has presented a redline version of the drafted proposed rules and regulations for the Downtown Planning Overlay District (DPOD). As stated in the Westborough Zoning Bylaws, Section 4910, the purpose of the DPOD District is to permit greater flexibility and more creative and imaginative design for the development of retail, office, and restaurant, residential and open space than is generally possible under conventional zoning provisions. It is also intended to promote and facilitate redevelopment of certain portions of downtown Westborough while providing a harmonious variety of uses, a higher level of amenities, a stimulus to the economic development of the community and providing vitality to the downtown area.
Chairman Brian Bush asked for discussion on the Guidelines. There were none.
Member Bill Spencer motioned to accept the Rules and Regulation Guidelines for the Downtown Planning Overlay District (DPOD) as written. The motion was seconded by Member Charlie Diamond and unanimously voted.
Member Mark Silverberg motioned to close the public hearing on the Rules and Regulation Guidelines for the DPOD. The motion was seconded by Member Charlie Diamond and unanimously voted.
Respectfully submitted,
Sandy Spinella/Administrative Assistant
APPROVED:
--------------------------------------------------- -----------------------------------------------------Brian Bush, Chairman of Board Mark Silverberg, Vice-Chairman of Board
------------------------------------- ---------------------------------- -----------------------------------
Edward Newton, Jr. Charlie Diamond William Spencer
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