2011-04-26CITY OF BEVERLY MASSACHUSETTS
PUBLIC MEETING MINUTES
BOARD OR COMMISSION:
SUBCOMMITTEE:
DATE:
LOCATION:
MEMBERS PRESENT:
MEMBERS ABSENT:
OTHERS PRESENT:
RECORDER:
Planning Board
Tuesday, April 26, 2011
Beverly Public Library, 32 Essex Street
Chairman Richard Dinkin, Vice Chairman John
Thomson, Michael O'Brien, Charles Harris, David
Mack, Ellen Hutchinson, and James Matz
Ellen Flannery
Assistant Planning Director, Leah Zambernardi
Diana Ribreau
Chairman Dinkin called the meeting to order at 7:30 p.m.
1. Subdivision Approval Not Required Plans (SANR's).
None.
2. Pending Application for Modification of Wellington Heights Definitive
Subdivision (a.k.a. Oak Hill Subdivision) — Request for Waiver of Owner Signature
on Form C Application.
Glenn Wood on behalf of Roundy Estates, LLC was present to discuss the ongoing
request for a Waiver of Owner Signature. He stated that at the conclusion of the March
29, 2011 Beverly Planning Board meeting members voted to request an opinion from the
City Solicitor, Roy Gelineau on whether an owner signature is in fact necessary on the
Form C Application and, if so, the effect of granting or not granting the requested waiver.
He stated the Solicitor responded in a letter dated April 26, 2011.
Wood stated that he concurs with all of the points stated in Gelineau' s letter. He
reiterates his request for a waiver of the owner signature requirements.
Dinkin opened the meeting up to questions from members of the Planning Board.
Matz stated he was absent at the last meeting in March and asked clarifying questions.
Dinkin asked Wood's opinion on the disposition of the property held by a corporate
entity when that corporate entity is dissolved. Wood responded that he is not a corporate
attorney and doesn't know.
Mack stated that the issue is whether the public interest supports a waiver of the
requirements that the owner to sign the application. Mack asked for Wood's opinion on
what he feels is in the public interest. Wood responded stating that Gelineau raised every
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April 26, 2011
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one of the points in his letter and went over each one with the Board in relation to such.
He further stated that anyone that has property adjacent to the stub could rely upon the
ability to use this stub. Wood stated that if it had not been for the Planning Board
granting a waiver requested by the developer to not pave the stub, the applicant would not
need to present to the Planning Board today. Due to the stub not being paved, the
property in Wenham is not developable. Wood and his client have relied on public
opinions received having had numerous discussions with City Officials including the
DPW that has confirmed the stub was a public way and that the applicant can do what is
proposed to do. Wood noted that neighbors raised concerns that their properties would
be affected if the project moves forward. Wood stated that the City Solicitor rejects that
position (as stated in the letter) stating that the project would not affect their mortgage or
the value of their property. Wood had previously cited several cases that Gelineau also
cites in his letter. Further, his opinion remains that some corporate entity that ceases to
exist in some capacity owns it, which results in an impossibility to get the owners
signature.
Dinkin reiterated that Wood said his area of expertise is not corporate law. Dinkin asked
that if Wood was to engage in services to a corporate attorney that it would remain
impossible to determine the disposition of ownership to this property. Wood responded
that Mr. Symes would be the likely lead person to go to. Wood stated that he has spoken
to Symes about this request and it has been represented to Wood that it is an irrelevant
interest. Any owner has been gone for decades. Wood reminded the Board that they
have tried unsuccessfully in the past in finding the Owner but that his only suggestion
would be that they could try again. Wood said that he and his client would rather try to
find the owner again than have the request denied.
Thomson stated that if the Board did not grant the waiver, it would force the applicant to
find someone who has ownership interest to sign the application. Wood responded that if
the Board goes beyond the four corners of the letter from the City Solicitor it would end
up in litigation. Wood referred back to the initial argument and the City Solicitor's letter
and that Wood does not feel that the signature of the owner is necessary in this case.
Wood said that in good faith they could choose to attempt to find the owner again
repeating that they would choose that route over being denied the waiver. Wood said that
it is their hope that the Planning Board would follow the input of the City Solicitor.
Dinkin opened the meeting up for discussion by members of the Board. Thomson
suggested that Wood make a good faith effort to locate the owner. Wood agreed to
attempt it again even though they feel they have already done so. Dinkin also suggested
that the applicant find a competent opinion of how the interest in that property devolves
after the dissolution of that corporate entity.
Wood responded that they went to the last living body out there and reached out to whom
they thought may be the owner and it did not result in any answers.
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April 26, 2011
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Wood stated that the Planning Board created this when they granted the waiver back in
1986 to not pave the stub. The original plans had the stub paved. The Wenham property
abuts the stub and they have the right to utilize and improve it. Wood added that it is
irrelevant that the proposed project is in Wenham and the stub is in Beverly.
Mack disagreed that the Planning Board created this issue. Mack continued to say that
the developer of the Beverly subdivision did not own the Wenham property. It is likely
the developer had no interest in it and didn't want to spend the money on paving the stub
therefore requested a waiver and at that time the Planning Board just granted the
developer's request. Wood agreed but said that it was known then that at some point in
the future someone would come along to build on the Wenham property and therefore
would need access through the stub.
Mack asked if Wood's client recognized the issue that is before them and if it was clearly
identified when they acquired the property. Wood responded yes. Wood continued to
say that he had met with the DPW Director two years ago to look at the old paving plans.
It was the DPW's opinion that a paving plan would need to be done. He also pointed out
that the DPW initially didn't feel at that time it would be necessary to even go before the
Planning Board however when the Planning Department was reengaged in it they felt that
a modification needed to be done. Wood said they have met with city officials and had
every confidence that the paving plans would go through.
Dinkin asked Wood to confirm that the request would be to modify the subdivision plan.
Wood responded yes. Dinkin asked that Wood describe his standing on the matter. Wood
responded that legally it is his client's right as a direct abutter to a public right of way.
Wood added that his client would be the only ones to come and pave the aforementioned
right of way. Wood agreed that it is a unique situation but at its core they are trying to
finish the paving that was required on the original plans that was waived back in 1986.
Thomson made a motion to table the discussion until the next regular meeting on
May 17, 2011. Hutchinson seconded the motion. Motion carried 6 -0 -1 with the
Chair abstaining.
3. City Council Legal Affairs Committee Request for Planning Board
Comments Proposed Amendments to Watershed Protection Overlay District
Ordinance and Map.
Zambernardi informed the Board that she has reviewed both proposals and has completed
a red line copy between the previous and existing proposal showing the changes between
both. Zambernardi said that there are many differences and she offered to send a copy to
Board members.
Thomson requested that the City Planner put together a narrative description of the major
differences as well as get a copy of the red line items as mentioned from one ordinance to
the other in advance of the next meeting. Thomson said that the Board is not ready for
comments until they are fully informed on the matter.
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April 26, 2011
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Matz suggested that the Board also receive other comment letters already on public
record such as from the Open Space Committee and the Conservation Commission.
Zambernardi agreed to get all the requested items to the members of the Board before the
next regular meeting.
Thomson made a motion to table the discussion until the regular meeting scheduled
for May 17, 2011. Matz seconded the motion. Motion carried 6 -0 -1 with the Chair
abstaining.
4. New or Other Business
a. Walking Path to Conservation Restriction Area at Manor Homes - Whitehall
Subdivision
Zambernardi gave a brief update. She reminded the Board that the Open Space
Committee submitted a letter regarding their concerns about the walking path easement,
which connects the open space to the proposed subdivision road. Since the March
meeting, Zambernardi informed the Board that Planning Staff, members of the Beverly
Conservation Land Trust and James Matz attended a site visit with Bob Griffin, the
developer's engineer. Zambernardi reported that the walking path easement that was
originally approved has a large obstruction of landscaping there now. Zambernardi said
that the conclusion from the site visit was that Griffin plans to propose another alternative
walking path on the same lot. She noted that the Beverly Conservation Land Trust and
the Conservation Commission must approve any changes to the easement. If an
alternative location is proposed and accepted by those entities, it would have to go before
the Planning Board for Modification of Subdivision. Zambernardi reminded the Board
that the letter from the Open Space Committee is requesting that the Planning Board not
release any bond or close out on the project until this matter is addressed.
Thomson asked if it is their opinion that the landscaping there now was not of accidental
nature. Zambernardi responded that she was told that landscapers did the landscaping
unknowingly. She also stated that the house is under a Purchase and Sale Agreement
now. The potential buyers of the lot are aware of the easement and the developer wants
the easement to remain on the lot.
Hutchinson asked what kind of landscaping is blocking the walking path. Matz
responded that large plantings (mostly Arborvitaes) are there now. Matz also mentioned
that the original walking easement path passes within 10 feet of the house looking into a
window. The path also would require passing through the side yard into the back yard,
which has a steep slope that makes it difficult to pass. Matz stated that it would require
significant modifications to make it safe. The alternative route on the same lot takes you
through riprap, up and over into the water retention basin, then up and out.
Zambernardi stated that work is being done now to find a third alternative route for the
walking easement and suggested that the Board wait for the third proposal to be presented
but to uphold the request by the Open Space Committee not to release any bond or close
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April 26, 2011
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out on the project until they receive all proposals and the matter is sorted out. Members
concur.
b. Reschedule Regular September Meeting Date
Zambernardi informed the Board that the upcoming September 20 Meeting
needs to be rescheduled because the meeting date falls on the Primary Election and the
Board couldn't hold any hearings on that day. After a brief discussion, the Planning
Board agreed that the Regular Meeting be rescheduled to September 13, 2011.
c. Request to Set Public Hearings:
Dinkin stated that there is a request to set a Public Hearing date for Proposed
Amendments to Open Space Residential Design (OSRD) Site Plan Ordinance Rules and
Regulations - Revisions to Plan Requirements & Proposed Amendments to "Submission
Requirements, Procedures & Supplemental Regulations" for Inclusionary Housing - Fee
in Lieu of Creating Affordable Housing Units.
Mack made a motion to set a Public Hearing for the Proposed Amendment to Open
Space Residential Design (OSRD) Site Plan Ordinance Rules and Regulations on
May 17, 2011 at 8:00 p.m. and to hold a Public Hearing for the Proposed
Amendment to "Submission Requirements, Procedures & Supplemental
Regulations" for Inclusionary Housing on May 17, 2011 at 8:30 p.m. Hutchinson
seconded the motion. Motion carried 6 -0 -1 with the Chair abstaining.
5. Approval Of Minutes
Minutes of the March 29, 2011 meeting held for corrections.
Thomson made a motion to approve the minutes dated February 15, 2011. Mack
seconded the motion. Motion carried 6 -0 -1 with the Chair abstaining.
6. Adiournment
Thomson made a motion to adjourn the meeting at 8:21p.m. Mack seconded the
motion. Motion carried 6 -0 -1 with the Chair abstaining.