07-18-2017 BPB Minutes (2)Beverly Planning Board
Meeting Minutes
July 18, 2017
CITY OF BEVERLY
PUBLIC MEETING MINUTES
Board:
Planning Board Meeting
Date:
July 18, 2017
Location:
Beverly City Hall, City Council Chambers
Members Present
Chair John Thomson, Vice -Chair Ellen Hutchinson (arrived 7:13),
Catherine Barrett, Ned Barrett (arrived 7:13), Zane Craft, Ellen
Flannery, David Mack, James Matz
Members Absent:
Wayne Miller
Others Present:
Director of Planning Aaron Clausen, Assistant Planning Director
Darlene Wynne
Recorder:
Samantha Johanson, Recording Secretary
Chair John Thomson calls the meeting to order at 7:05 p.m.
Subdivision Approval Not Required Plans
Mr. Orestes Brown, 726 Hale Street, owner of Lot A and Lot B. Brown is looking to transfer an
approximately 1,000 sf area (Parcel C) from Lot B to Lot A to make the lot more conforming
because he is renovating all of his properties. He tells them that Lot B remains conforming and
has sufficient frontage for Lot B, but Lot A is pre- existing non - conforming for frontage. Brown
points out the driveway that provides access for both houses, and that the garage is being
eliminated from the property.
Mack asks if the plan needs to show the access. Thomson answers he doesn't think it needs to
show the access as long as they know it exists. Thomson asks Brown if each lot has their own
access directly from Hale Street and Brown indicates that they do. Thomson notes the location of
the fire hydrant. Thomson states that the areas are already conforming except for the setbacks
and frontage which are non - conforming.
Mack: Motion to endorse the plan as Subdivision Approval Not Required. Flannery
seconds. The motion passes (6 -0).
Open Space Residential Design Site Plan (OSRD) & Definitive Plan — Cove Village — 3
Village Lane - Request for Minor Modification — Charles Lukens
Thomson introduces the application. N. Barrett arrives. Matz indicates that he can fairly and
impartially act on the matter. Hutchinson arrives.
Charles Lukens, 3 Village Lane, indicates he is looking to reduce the permitted setback on his
OSRD lot as shown on the plans for placement of a shed. He explains the area in which he wants
to put the shed is optimum for both himself and neighbors and doesn't interfere with drainage.
He mentions the adjacent house that shares part of the yard triangle that he has pointed out on the
plan has no windows on the side in which he wants to place the shed and therefore will not
impact their views. Thomson asks Lukens to indicate what exists. Lukens answers that his house
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July 18, 2017
has been built but that the shed has not been constructed, He notes the shed will sit inside the lot
by 1 foot, so the request is for 4 feet and would have a 4x4 section with gravel around the shed.
Thomson asks the Board if they have any questions.
Matz asks if he has gotten any feedback from the neighbors. Lukens explains that there are sales
pending on houses on both sides of his property. He notes that he has had the area staked out
while the properties have been marketed and that it is clear what is intended.
Thomson asks Lukens how many houses are in the cul -de -sac. Lukens answers there will be six
houses, but there are currently seven in the HOA. Thompson asks if they are all similarly
configured like his lot with open space behind them and Lukens tells him that they are. Thomson
notes that this approval could set a precedence.
N. Barrett asks if this is coming to the Board because of the OSRD plan. Thomson confirms that
is the case and that they have the power with the OSRD to waive the dimensions required.
N. Barrett asks if there is a property on the other side of his home. Lukens shows N. Barrett on
the plan where there are existing homes.
C. Barrett asks if the applicant has to go to the Zoning Board as well. Darlene Wynne explains
that under the OSRD the Planning Board hears variations in the setbacks.
Hutchinson asks if the applicant had the choice of going in front of Zoning Board or the Planning
Board for approval. Wynne explains this is the only option because of how it is written in the
ordinance.
Mack acknowledges that part of the OSRD ordinance allows oddly shaped lots, and asks if the
location of the proposed shed is a product of how they approved the OSRD plan. Lukens
explains him that he is limited because of grading, aesthetically his recommendation would be
the best option. Mack asks him about distance to open space and if it is any closer to his
neighbors. Lukens explains that it is not and it is the furthest distance from his neighbor that he
can possibly be and that it doesn't compromise the open space.
Thompson explains to Mack that it is not a typical lot. Mack says he understands that it is 4 feet
and it doesn't seem like it is going to affect anyone, but the question is if it meets the criteria of a
variance. Wynne explains that it is really a Site Plan modification and the Planning Board
doesn't have the authority to issue a variance.
Mack: Motion to find that the site plan modification is minor in nature. C. Barrett
seconds. The motion is approved (8 -0).
Mack: Motion to approve the proposed modification to the OSRD Site Plan and
Definitive Plan. C. Barrett seconds.
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N. Barrett states that they may see this again because of some of the interesting lot
shapes that have been approved. He notes that the applicant chose the best
location possible, that the lot has a unique shape, and there were grading
concerns. He says they should review on a case -by -case basis and based on this
case he believes this is an appropriate motion to consider.
The motion passes (8 -0).
Continued Public Hearing — Trask Lane Definitive Subdivision Plan — Elimination of
Planning Board 1981 Approved Roadways, Shortening of Proposed Trask Lane and
Combine Lots — Folly Hill Associates Trust
Flannery: Motion to recess to Public Hearing regarding this matter. Hutchinson seconds.
The motion passes (8 -0).
Mack: Motion to waive the reading of the Public Notice. Hutchinson seconds. The
motion passes (8 -0).
Mr. Glovsky thanks the Board for the continuance from the June meeting and apologize for not
being there in person. He explains that the City Engineer (Greg St. Louis) had provided a long
list of items that needed discussion and that they weren't able to meet with him until June 13
He notes that Peter Ogren, Hayes Engineering, has responded to Mr. St. Louis with a list of items
that would be included in the plan. He explains that the reason the items haven't been
implemented into the plan yet is because it would be a very expensive plan and if the Board
decided to make further modifications that they would have to go through the process all over
again. He notes that Wynne has suggested in the possible list of conditions if the Board were to
approve the plan it would be contingent on the plan being revised and it would include those
items set forth in Mr. Ogren's letter to Mr. St. Louis.
Glovsky explains that it is not a plan that creates new lots, nor new building opportunity. It is a
plan that is part of a zoning freeze, and that the property remains subject to the former RSD
zoning requirements. He wants to make sure that whatever happens to the Folly Hill property
that it is beneficial to the City, the owners, and the neighbors. He tells them they have received a
waiver list from the Planning Department and a list of suggested conditions. He tells them the
conditions, for the most part, are acceptable and the applicant is willing to incorporate them into
any approval of plan the Board may vote on.
Glovsky brings up two conditions that are troublesome. He suggests that proposed condition #1
under the circumstances would constitute an unreasonable condition as they are not creating any
additional building lots and that it is subject to the RSD zoning which allows for multiple
buildings on one lot, and would undermine the benefit the owner has from the RSD zoning, by
taking away what was bargained under the agreement the owner entered into with the City in
1971 with respect to the initial RSD zoning.
Glovsky also states that the other condition they have an issue with is proposed condition 97
which provides that the application of future development should demonstrate there is adequate
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sewerage and water infrastructure consistent with Beverly Subdivision Regulations. He explains
the 1971 agreement was entered into between the property owner and the City, and established
the property owner agreed to pay the City $250,000, and the City agreed to supply water and
sewer service to the property sufficient to support 1,400 dwelling units. The City also agreed to
adopt the RSD zoning as is presently enforced, to encourage the development of high rise, high -
density buildings on this isolated parcel of property. Subsequent to that agreement there were
three projects that took place on Folly Hill which contain 554 dwelling units. Glovsky tells the
Board that the City is responsible for providing adequate water and sewer capacity. For them to
require this issue would violate the 1971 agreement with the City.
Glovsky also suggests a minor change to proposed condition #3 which states the definitive
subdivision plan contains a 200 -foot buffer which he interprets that as required by the RSD
zoning, which is shown on the plan and that he can't modify it because it is part of the RSD
zoning. He recommends it be modified by adding the word "the" before "RSD" if they adopt the
condition.
Glovsky states that besides those three conditions, the applicant agrees to the conditions
recommended by the Planning Department. He lets the Board know that Ogren is present this
evening to answer any questions.
Thomson asks the Board if they have any questions.
Mack asks does the City Solicitor agree with counsel's representation with regards to the
obligations of the 1971 agreement relative to providing the water and sewerage to the 1,400
units. Aaron Clausen tells them that the City Solicitor's office has not reviewed the claim. He
suggests that they could ask the Solicitor's office to opine on this; they would have to review the
agreement in the context of its time. He believes that condition #7 is related to the actual
subdivision regulations and requirements to ensure adequate utilities are sufficient to support
development. He notes that if there is some requirement that the City must comply, he
recommends that the applicant could come back to the Board for a modification. He notes the
agreement is not connected to subdivision approval and that a discussion needs to take place
between applicant and City.
Thomson asks for clarification that as far as the Planning Department is concerned that condition
97 is not needed because they could come back at a later date. Clausen clarifies that in the
agreement that Glovsky is referencing is outside the subdivision review and is a discussion that
needs to happen between the applicant and the City. He says that they would argue that the
condition be retained as it is one of the requirements of the Planning Board and related to safety
and health and that the Board should be able to review that in the future. Thomson notes that the
applicant seems to be objecting to the language "at the applicant's expense" and that they could
consider removing that language. Clausen provides an example that if a development came
through with 200 units, sewer and water lines would be required internal to the subdivision and
that any needed extension of sewer lines, water lines, drainage within the subdivision would be
at the applicant's expense. He adds the City is not on the hook to provide these utilities for a new
building on the site.
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Glovsky respond that Clausen is correct and adds that the agreement provided to the City was to
bring the capacity for the 1,400 units to the property line and that it is the property owner's
responsibility to create the onsite infrastructure to support the improvements. He believes the
condition could be acceptable if as Thomson explained either the language "at the applicant's
expense" be deleted or they stay and add a comma after the word expense and say unless
otherwise determined to the responsibility of an alternative third party. Thomson states that
another option would be to discuss the improvements being made as only portions within the
project. Glovsky states that would be acceptable.
N. Barrett asks if they condition something that if there is a private agreement between the City
with a developer that supersedes the Board's conditions and it is found that the agreement is
binding then it's at the applicant's expense, but then if they subrogate the expense to the City
that's a private agreement and he doesn't think that has much bearing on the conditions the
Board sets forth. Thomson is unsure of the answer to that question but he could see the potential
for a preexisting agreement being in conflict with what the Board may decide. N. Barrett states
that he guesses it will depend if the 1971 agreement continues to be binding, but if it is
determined the agreement is not binding the Board may have left it condition -less. Thomson
indicates they have solved this question. Clausen explains that N. Barrett's point is why they are
proposing this condition. He adds because this agreement was established in 1971 and there
hasn't been a project put forth recently, the condition should be included to preserve the Planning
Board's authority to require sufficient utilities to support future planning projects.
Thomson asks staff to elaborate on condition 41. Clausen explains that because the applicant is
looking to do a subdivision by combining two existing lots to create a new lot and reducing the
roadway that was previously approved in 1981. He notes there isn't a project for the Planning
Board to consider based on the number of units and whether there is adequate access, utilities,
drainage, fire access, emergency access, etc. He explains that what the condition is saying is that
since there is no plan for the Planning Board to actually consider, and once a project is proposed
by a future applicant, the Planning Board has the ability to conduct site plan review under RSD,
it would also have the opportunity to review conditions of adequate access and utilities consistent
with Subdivision Regulations at that time.
Glovsky states that the RSD zoning didn't require any particular frontage or specify roadways in
the RSD District, noting it's a very hybrid, unusual zoning provision and the intention was there
would be a lot of flexibility. He agrees that if they were going to subsequently create more lots it
would be a new subdivision, but under these circumstances the Planning Board does have the
authority under Site Plan Review to address all of those issues. He believes that is the only
mechanism under these circumstances because they are not creating additional lots. He notes
these issues weren't contemplated or included when the 1981 plan was reviewed and approved
and he didn't want to go on record as acquiescing to this condition. Thomson says Glovsky's
exception is noted.
Mack asks because of the RSD zoning as applicable under the freeze, what triggers Site Plan
Review by the Planning Board. Glovsky states the Site Plan Review triggers are as part of the
zoning ordinance. Wynne provides that if they are over ten units or more than two townhouses or
similar building type on a single lot would trigger Site Plan Review. She also adds that Section
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375 -6 says that not more than one building designed or available for use for dwelling purposes
shall be erected or placed or converted to use as such on any lots in a subdivision or elsewhere in
the City without consent of the Planning Board. Glovsky claims that the provision is contrary to
the RSD zoning, which specifically was designed to allow multiple buildings on a lot and a
significant density on a lot. He states the RSD zoning gives one thing and this proposed
requirement for further subdivision review would take that away.
Clausen explains that zoning and subdivision control are two different regulations and there is no
question that the RSD provides a lot of flexibility with laying out a site, but he adds that doesn't
mean that it does not need subdivision approval, and if subdivision approval is sought then there
are automatic exemptions to meeting the rules and regulations of the Planning Board's
subdivision regulations. He adds that while it does provide flexibility it does not say that the
project is exempt from the subdivision review process.
C. Barrett asks if it would be of any value for the Board to see the 1971 agreement. She also asks
about the $250K payment Glovsky brought up and whether that is related to that agreement.
Glovsky tells her that he has a copy of the agreement. Thomson explains that Clausen has stated
it is not in their purview to look at it because whatever their opinion of it, it exists and it will be
subject to future debate.
Mack suggests that since both sides want to reserve their rights because of theoretical future
development, that they may want to add language to conditions #1 and #7 that suggest that both
sides can assert that, for example in #7, add, consistent with Beverly Subdivision Regulations or
any applicable contract with the City, or in #1, they add, pursuant to the relevant section of the
subdivision regulations to the extent applicable, etc., that way it is open to interpretation by the
Planning Department, the abutter, the applicant reserves the right and at least they can potentially
avoid unnecessary contention or appeal. Thomson said they will be adding to 97, to extent
applicable. Clausen adds that he would recommend leaving out any language of a contract.
Glovsky suggests that in addition to 91, unless precluded by other applicable authority. Thomson
states he believes that "to the extent applicable" covers that.
Thomson mentions that there are a lot of waivers before them and asks what the thought process
is on asking the Board to approve the waivers while a plan could've avoided that. Peter Ogren,
Hayes Engineering, answers they submitted a plan with waivers because of the nature of the plan
that was already approved with a bunch of waivers that were debated by the Planning Board at
the time such as sidewalks, trees, etc., and that it was to be a Planned Unit Development and
would be subject to a Site Plan Review. He states when the subdivision regulations were written
they were anticipating a typical subdivision and not one that eliminates streets that were
previously approved. He mentions that Mr. St. Louis raised some issues about changing
alignments, etc. which have changed over the years; Ogren said they could agree to those but
they don't think it makes it a new subdivision. He adds, he thought the waivers that he originally
submitted on his list were the ones required because of the plan format or because of the
engineering information that was already available. As an example, he mentions he didn't see a
need to do new test holes.
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Thomson indicates that he'd like to hear the City's viewpoint. He notes he would expect a freeze
plan to be a clean, waiverless, as -of -right plan. He states he thinks they are looking at this as
more of a modification, but in his opinion, it comes across as a brand -new subdivision plan.
Wynne interjects that is how it was presented at a previous meeting. Glovsky states it was
presented as a re- subdivision.
Ogren says that is one of the questions if it's a new subdivision plan and if the City doesn't vote
the waiver, they will have to address that issue and if the Board denies the waiver they will have
the opportunity to correct the issue. Wynne confirms. Thomson says that is something they
would like to think about and he would like to hear from the City which waivers are more
customarily granted. Ogren says your perspective on the plan says what is or isn't a waiver. He
was thinking about it as a modification of a definitive subdivision plan. He adds it is still a
definitive subdivision plan, and the SCL says in order to modify, it needs to follow the same
procedure as a definitive plan. He says they can either look at it fresh or if it's denied for those
reasons, that they can agree to do what needs to be done and correct deficiencies.
Clausen believes this is a new definitive subdivision application and it was not submitted as a
modification and the applicant chose to submit it as a new definitive plan. He agrees the Board
has authority to review it and require a waiverless plan, even though in 1981 the plan was
submitted with waivers and now it is 36 years later in a different context. He states they offered
condition 91 for Planning Board to consider because it was directly related to the waivers being
requested. He extrapolates, the waivers were being requested because they've already been
approved in the previous subdivision and there is not a new project to review in terms of access,
number of units, utilities. So that if the Board were to consider granting of these waivers, this
condition could be added so that at the time of a project in future, all of these elements could be
considered in the context of an actual project. He adds as far as waivers, many of these the Board
has occasionally approved in the past, such as street trees or street lighting, and that this can be
looked at in the future in the context of an actual project.
Thomson states that condition 91 needs some additional language such as notwithstanding any
waivers granted herein, etc. He thinks that it should be clear that in the future development, they
are not bound by any waivers in this plan. Mack suggests they should add a separate condition
that for any waiver granted that the applicant or any future developer would resubmit to get the
approval of the Planning Board for any previously granted waivers.
Hutchinson asks Clausen that if the waivers are granted and the applicant at some point files a
modification of the subdivision, then these waivers would continue. Clausen responds by telling
her that the Planning Board would retain the ability to review them. She clarifies that without the
condition, these waivers would continue. Clausen explains that they are not necessarily
approving the waivers now but gives the Board the ability to review them in context of a project.
Thomson asks about one of the conditions that has been deleted from the suggested list now, to
formalize a permanent easement for right of access to the water tower. Glovsky tells him that the
City of Beverly has a water tower on a portion of the 80 acres and agreements were made with
the property owner and City that were not in writing that he's aware of. He adds they are open to
working out an arrangement with City, noting however that the City has the right to take what
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they need by eminent domain. Glovsky indicates nobody has asked the owner for an express
easement and he doesn't believe it's germane to the definitive plan.
Thomson asked about a response to the City Engineer about removing public easements but not
private ones. Ogren explains that he said when the Board takes the action to eliminate the ways,
it can only be to remove the public right and if someone has a private right they would still have
that right. For example, if someone was deeded lot you may eliminate the way, but not the right
of the individual; they are not asking to eliminate any ways in that category other than possibly a
portion of the way that theoretically owners of Apple Village would have the right to. He says
those owners would still have the right.
Thomson asks if there are any public ways in this subdivision currently. Ogren explains that
there are no public ways. Thomson asks what public rights there are. Glovsky explains that the
public right is right that the City may have to get to the water tower, and there was some concern
that eliminating the cul -de -sac that they were in -fact eliminating a connection between Trask
Lane and the water tower. He says that whatever the rights the City has will not be affected by
that. Thomson said the right of the city to access its water tower concerned him. He said he
would need a better explanation of why they would allow elimination of that right of way, if it
exists. Glovsky tells him if the Board acts on the plan tonight, there are a number of changes that
would be needed to the plan and one could be to add the word access to that utility easement.
Clausen states that it is the City's opinion that we do have access and rights to the easement that
provides access to the water tower. He adds that one of the conditions proposed [ 95], states that
approval of the definitive subdivision doesn't eliminate that and has right of access to maintain
water tower, whether the subdivision plan is approved or not. So, this means that any approval of
the subdivision does not take away any rights of access that a private entity would have,
including the City. He notes there is an easement on Apple Village that the plan proposes to
eliminate; he reiterates that a subdivision plan does not eliminate any easements. Thomson asks
Clausen if that language should be removed from the plan. Clausen confirms that it is
unnecessary and that the plan should show all existing easements. He adds if the easement is to
be removed in the future, it needs to be discussed with whomever holds the easement.
Mack seeks to clarify the language of condition #5. He says if the City has an easement but not
shown on plan, it might be eliminated. Thomson suggests the language, "whether or not shown
on the plan," be added.
Thomson asks if there are any other comments and asks if anyone from the public would like to
speak.
Rick Marciano, 141 McKay Street, asks if there are any fire lanes that the Fire Department uses.
Wynne clarifies that there are fire roads and that the applicant is not asking to discontinue that.
Marciano also asks if any of the trails up through the property that have been used for years will
be disrupted. Thomson explains that there are no physical changes being shown on the plan and
any approval by the Planning Board regarding this plan will not eliminate anything. Marciano
then asks who paid for the road on Trask Lane that runs up to the water tower. Glovsky, through
the Chair, answers the owner did. Marciano then asks if they want to shorten the actual Trask
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Lane that goes up to the tower. Wynne explains that Trask Lane ends before the tower and then it
is just a path or way.
Marciano asks how the Board can approve the plan if they aren't clear on what they are doing.
Thomson tells him he is not sure what their options are, but he knows the Planning Board can
deny the plan, deny the waivers which denies the plan, or do nothing and let the time expire, in
that case the plan is approved automatically, or they can approve it with conditions. Marciano
asks if the Mayor is exploring options regarding the property. Thomson tells him the Mayor has
not communicated with the Board on this matter. Marciano requests that the Board wait to decide
on this issue until they really know what happens. Thomson explains they don't have that option
due to time limits of the statute.
Mack notes regarding the list of options, that there are a lot of potential modifications and it may
require a revised draft. He asks would it also be an option to propose a continuance, to get more
information, plans, etc. and then vote in September. Thomson tells him that is an option. Mack
explains that there is a lot to follow from tonight's discussion and there is a lot going on.
Thomson asks if the applicant is asking for more time to clarify. Glovsky tells him only if the
Board feels it is necessary, he doesn't feel the conditions require many changes, but if the Board
wants more time they would not be adverse.
Hutchinson would also appreciate some extra time to review everything with some new proposed
language. Thomson suggests that they can hammer out the language, but everyone might not be
comfortable acting on it that evening.
N. Barrett said that on conditions 41 and 97 talked about making a reasonable few tweaks. He
adds his sticking point relates to the waivers and if they are looking at a zoning freeze plan, his
thought is why it cannot be waiverless. He notes if they approve the waivers, his goal is to make
sure that they are not binding upon the Board when they are presented with an actual plan. He's
not sure there's a legal way to do that. Thomson tells him they can craft the language and
conditions to address the points and avoid implications that are passing it as a waiverless plan.
But he notes his own concern that when waivers are granted, that they are considered to be in the
best interest of the public, not the applicant. But he does not see any benefit currently to the City
or the public if they grant these waivers. He adds they have to decide what is in the best interest
of the City.
Clausen states he doesn't see any public benefit to granting the waivers, and they just want the
Planning Board to review future projects based on all regulation requirements, and the Board
retain the ability to require that they meet all the regulations. If the Board is so moved, the Board
has the ability to deny waivers requested. Thomson states that if the Board denies anything that
the applicant can appeal their decision. He also adds that if they approve the plan with
conditions, the applicant can appeal. He tells them that nothing they decide to do tonight will cut
off the applicant's right to appeal whatever they do. He believes they should act in the best
interest of the City.
N. Barrett asks if an alternative would be to give the applicant the opportunity to refile a waiver
list. Thomson tells him if they deny the waivers they have a reasonable time to come back and
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address the waivers. Glovsky tells them that if they continued the public hearing it would give
Mr. Ogren a chance to get together with Mr. St. Louis to discuss what waivers are in the best
interest to the City. He tells them that he didn't realize until tonight there were issues with the
waivers. He provides another option would be to continue the meeting until Mr. Ogren and Mr.
St. Louis have met. Wynne tells them that the agreement upon the waiver list between Mr. St.
Louis and Mr. Ogren would have to come before the Planning Board for final approval. Clausen
tells them he thinks the Planning Board should review this tonight and not push it out to decide at
a later date. Thomson also agrees it should be decided upon this evening.
Mack asks if the proposed condition that any waiver granted tonight would be subject to further
review with future Planning Board and future developer is a legitimate condition. Thomson
answers it would be up to the court to decide if the applicant is not happy with any of the Board's
conditions and that he believes it is a reasonable condition.
Thomson asks for any more public comment, none is heard.
Mack: Motion to close the Public Hearing. Flannery seconds. Motion passes (8 -0).
Thomson asks the Board if they would like to decide on the matter now or decide later in
meeting.
N. Barrett: Motion to deny the application for a definitive subdivision plan for Folly
Hill /Trask Lane submitted on March 23, 2017, based on the waivers requested. J.
Matz seconds.
N. Barrett notes that given the situation, he believes it should be a waiver -less plan. C. Barrett
asks if these waivers were the same waivers for the previous approved plan. Thomson tells her
no and that Mr. Ogren thought some of the waivers were granted previously and the Planning
Board has added the ones that need to be regranted. C. Barrett asks if they are the waivers from
the 1981 plan, and Thomson tells her that some are and some are not.
Mack says that they should identify particular waivers that would be denied because some of
them are typically granted in an ordinary course; to not do so here could be seen as arbitrary and
capricious. He notes he prefers they should allow the plan subject to conditions.
N. Barrett says that if anyone wants to suggest specific waivers or if anyone wants to propose an
amendment to that motion that they can at least start there. Matz tells them that he reviewed the
first 8 waivers, and asks is it correct to say roadway was approved under previous plan, etc. and
therefore some of these waiver requests would be reasonable. Thomson tells him that in the
City's view that is not the case.
N. Barrett mentions some waivers they would normally approve without issues. He identifies the
waivers 91, #2, #4, #6, and #7 as outlined in the application, as ones that would not normally be
approved. N. Barrett says on the whole that what they have is unacceptable.
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Motion to deny the subdivision fails to pass (4 -4, N. Barrett, Craft, Matz, and
Thomson in favor and C. Barrett, Flannery, Hutchinson, and Mack opposed).
Thomson suggests the options are to delay to another meeting (September) or work on conditions
for an approval. Wynne notes that an extension would be needed if the Board continues the
discussion. Glovsky requests a brief recess so the applicant can discuss.
*The following section restarted later in the evening to continue discussion.
Glovsky requests a continuance until September so that they can work with the City, and he
suggests that a subcommittee be created including the City Solicitor because (1) there are
differences of opinion that he thinks need to be resolved regarding the status of the plan and how
it may or may not affect waivers that were previously granted to the 1981 plan and (2) they
would also like to review with the City Engineer and City Solicitor, and a representative or two
from the Planning Board, the waiver list and rationale for the waiver requests. He wants to
resolve in what could be an amicable fashion.
Glovsky expresses surprise that the Planning Board hasn't been able to review the Folly Hill
history, the 1971 agreement, the '82 amendment to the agreement, and the circumstances around
the `82 definitive plan. He also explains some history, that there was a communication problem
between the Reeve family and the Grimes' administration. The family didn't pay the City
because the City hadn't built the sewer and water yet. The City threatened to rezone the property
because the family didn't maintain its end of the bargain. He notes there was protracted litigation
and meetings, and the issue was eventually resolved by the City not rezoning the property. He
notes the 1982 definitive plan did freeze that zoning, though it wasn't needed, the family paid the
money, and the project went forward. He believes it would be important for the Planning Board
to have more background on the project. He asks the Board for continuance until the September
meeting if the Board can offer a representative to meet with the applicants to come to meeting
with fewer issues in the air.
Mack said he is prepared to make a motion, in lieu of a continuance, and to approve the
subdivision plan with conditions. Hutchinson states that she is disappointed the applicant is
seeking conditions on a continuance and that the Board has no authority to commit the City
Solicitor to be on a task force. She would support Mack's motion.
Mack: Motion to grant approval of the proposed definitive subdivision plan with
conditions listed in the staff report as revised, with the following changes:
Condition 1 — after subdivision regulations, insert the phrase "to the extent
applicable."
Condition 5 — insert the word "whether" before shown and before held.
Condition 7 — add after the words water infrastructure "within the proposed site"
so that it is clear it doesn't extend to connections off the site.
They add two new conditions:
New Condition 11 — That the Planning Board retains jurisdiction to evaluate in
the context of the proposed future development of the site any waivers granted
herein.
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New Condition 12 — That the applicant of any future proposed development
submit a modified plan with a list of the requested waivers for consideration by
the Planning Board in the context of the proposal.
That any letters from Boards or Committees with requested conditions be
included herein, if applicable.
Hutchinson seconds the motion.
Thomson asks if they are going to require extinguishing of existing easements language be
removed from the plan. Wynne tells him that refers to utilities easement to remain and it should
say access and utilities easement to remain. Thomson asks for something more specific. She
questions if language should be corrected under proposed Condition 92. Flannery and Mack ask
if it should be Condition 95. Thomson says that one change was to correct to utility and access
easement and the other change was to Apple Village there was language referencing
extinguishing an easement. Clausen explains them the definitive plan should show existing
easements, not intent. Thomson clarifies it's not "to be extinguished ".
Mack: Amends the motion to add that Condition 5 be changed to read that "the definitive
plan show existing easements including the correct notation of the utility
easement as a utility and access easement." And that he doesn't want to add
language about extinguishing easements. Hutchinson seconds.
C. Barrett mentions that the applicant wanted to tweak #3. Glovsky mentions that it should read
that the definitive subdivision plan contains "the RSD" 200' buffer (with the words in quotation
to be added).
Mack: Amends the motion to have that phase added to Condition 3. Hutchinson seconds.
Thomson confirms that Board understands the motion. The motion is approved
(5 -3, C. Barrett, Flannery, Hutchinson, Mack, Matz in favor and N. Barrett, Craft,
Thomson opposed).
*Agenda was taken out of order.
Continued Public Hearing — Site Plan Review Application #127 -17 and Special Permit
Application #153 -17 — 105 Sam Fonzo Drive — construct two self - storage buildings, one
general commercial /light industrial building, and request for three driveway accesses —
Beverly Airport Self Storage, LLC, c/o Miranda Gooding, Glovsky & Glovsky, LLC
Thomson tells the Board the applicant is requesting a continuance until the September meeting.
Mack: Motion to grant the applicant's request to continue to the September 19, 2017
meeting for both applicants. Craft seconds. The motion passes (8 -0).
Public Hearing — Special Permit Application #158 -17 and Amendment to Inclusionary
Housing Permit #06 -14 — 131 McKay Street — Convert on -site affordable rental units to
affordable home - ownership units and /or to allow payment of a fee in lieu of providing
affordable units on site — Windover McKay LLC, c/o Glovsky & Glovsky, LLC
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Wynne tells them that the applicant has requested to withdraw the application without prejudice,
which means they would have the ability to resubmit. She notes that she's unsure of the reason
why they're asking to withdraw.
C. Barrett asks if the applicant is withdrawing permanently. Wynne explains that without
prejudice means they can resubmit.
Mack asks if they don't agree would the applicant have to wait two years to resubmit. Thomson
confirms yes, unless they show a substantial change.
Mack: Motion to grant request to withdraw the above - referenced applications, without
prejudice. Flannery seconds. Motion is approved unanimously (8 -0).
Public Hearing — Proposed Amendments to "Submission Requirements, Procedures &
Supplemental Regulations" Section 315 -15, Inclusionary Housing Regulations "Fee in Lieu
of Units," pursuant to Chapter 300, Article XV of the Beverly Zoning Ordinance entitled
"Affordable Housing"
Hutchinson: Motion to recess for Public Hearing on the matter. Flannery seconds. The motion
passes (8 -0).
Wynne reads notice of Public Hearing.
Thomson asks who from the public is interested in speaking. He explains that the regulations set
a fee that a developer is required to pay if the Board allows them to build affordable housing
units off -site. He adds the inclusionary housing ordinance requires that projects of a certain size
need a certain percentage of units be affordable and the default rule is that the units need to be
provided on -site and comparable to the market rate units. Developers can request relief from the
Board of the requirement to provide on -site affordable housing units by paying a fee in lieu and
allows them to donate money to the City's Affordable Housing Trust. He adds the question
before the Board is what that fee schedule looks like.
Wynne tells them that the fee was set as 35% of the average of the lowest 50% of single family
home or condominium sale prices in the Beverly neighborhood in which the applicant is
developing the units in the three fiscal years immediately prior to the current fiscal year in which
the application is made. She tells them that neighborhood refers to the assessor's neighborhood
code, and not the standard neighborhoods that everybody understands. Thomson comments that
they have about 40+ different neighborhoods in the City and that each has its own sales statistics,
which is used to create the formula. He notes there is no discretion involved. He said the feeling
is that the median is the best statistic to use because it is more reflective as to what is going on in
that particular neighborhood. Wynne agrees and indicates that staff did some research of other
communities, noting there are a wide array of different calculations used. She added that Aaron
Clausen did some research and he believes it would raise the fee by about 20% on average per
unit.
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C. Barrett asked if this is the verbiage discussed in their smaller Planning Board meeting. Wynne
answers that it was part of the presentation and discussion made during the joint public hearing
with the City Council but the regulations are not subject to the same type of approval and it is not
an ordinance so it is not subject to approval by the City Council. She tells them that is something
the Planning Board has purview over and that is why they did it separately.
C. Barrett says that she has some questions related to the Affordable Housing Trust Fund. She
asks if the Trust has been set up and how much is in the fund. Wynne confirms that it has been
set up and that there is about $758,000 in the trust currently. C. Barrett asks if any of the money
has been disbursed. Wynne tells her no, that the Trust has met but they are still determining
priorities. C. Barrett asks if the people on the trust will vote on the disbursements. Wynne tells
her they do and they have to set up that process, similar to the grant process for the CPA.
N. Barrett asks who is on the Trust. Wynne responds the members are the Mayor, who is
required by statute, as well as Clausen, Bryant Ayles, the Finance Director, Richard Dinken,
Former Planning Board Chair, and Sue Gabriel, Executive Director of Bootstraps. Clausen adds
that the process will be similar to CPA, except they want to be more responsive to the
applications because the development cycle is challenging for non - profits or any affordable
housing developer. He adds they want to develop guidelines and a process that is very clear and
consistent and gives the trust has the ability to act quickly.
Thomson asks if there are any developments underway that promised funds that haven't yet
arrived. Clausen tells him there are still some such as Kelleher Pond (collected), Vitality on
Dunham Road, annual payments over 10 years of about $500 -600K, about $50,000- $60,000 a
year. Wynne also notes the Congress Street project has a required payment, should it be built.
Rick Marciano, 141 McKay Street, asks what the money from the Trust fund can be used for.
Thomson and Wynne tell him it can only be used for the creation or preservation of affordable
housing units. Marciano asks if a developer wants to build something would the Board give them
10% of what is in the fund. Thomson tells him it is not the Planning Board but the Housing Trust
that decides that.
Hutchinson: Motion to close the public hearing. Seconded by Matz. Motion passes (8 -0).
Hutchinson: Motion to approve revision to the calculation method of the fee in lieu of
providing affordable units pursuant to Section 315 -15 of the Inclusionary Housing
Regulations. Matz seconds. Motion passes (8 -0).
Request for a Minor Modification to Inclusionary Housing #09 -16 at 480 -482 Rantoul
Street — Beverly Crossing 480, LLC c/o Glovsky and Glovsky LLC
Michael Dissette, Glovsky & Glovsky LLC, tells the Board they are here to request a minor
modification to the inclusionary housing approved plan. The minor modifications being
requested do not affect the total number of housing units which are 90 or the 11 affordable units.
Originally the plan had 9 one - bedroom units and 2 two- bedroom units as approved. He tells them
they would like to change 3 of the one - bedroom units to studios, and change locations of 6 of the
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other units as reflected in the plans they submitted. He tells them that the result of the changes
would be 2 of the 3 studio units would be designated as affordable, leaving 7 one - bedroom units
and 2 two- bedroom units in the affordable category. The market units they would end up with
would be 1 studio, 52 one - bedrooms, and 26 two- bedrooms.
Dissette adds that the change in the locations doesn't affect the proportionate dispersal
throughout the project, as pointed out in the staff report. He tells him the finishes will remain the
same and the sizes of these types are comparable. He explains the proposed sizes of the various
units. He explains the intent of the modification is to introduce a new type of unit (studio),
because they feel more variety of rental housing choices is needed at the smaller footprint,
especially for people looking to spend the least amount on housing such as seniors or single
occupants that may be cost burdened. He adds there is a housing need for this group in Beverly.
Dissette describes that DHCD recognizes a studio unit as a minimum of 250 square feet size and
has added this unit type to the Regulatory Agreement, noting that the applicant did not have the
updated regulations from DHCD at the time of application. He tells the Board that if they
approve the request, the applicant will submit the revised Regulatory Agreement and revised
Local Action Unit application, required by the state, to the planning office as requested. He also
explains that a covenant for the property is on record that protects the undertaking by the
applicant to have 11 affordable units at this property and the regulatory agreement, when
approved and recorded, would take the place of that covenant.
Dissette notes that in terms of recognizing a housing need, that at the planned development at
112 Rantoul, 10 studios were approved, and 2 or 3 of those were designated affordable. He
believes it is a positive to have 2 of the studio units as affordable and adds to that market
positively to those individuals looking for options at that range of cost. Dissette then explains the
comparable sizes from the previous plan to the new studio units.
Matz asks to clarify about the studios being affordable. Dissette answers that 2 studios will be
affordable (out of 3), 7 one - bedroom units will be affordable (out of 59), and 2 two- bedroom
units will be affordable (out of 28 total). It is a decrease from 9 to 7 affordable one - bedroom
units; there was no change in two- bedroom units. Matz asks if they are increasing the number of
market units because there is higher demand for those units. Dissette answers that it is not a
negative to have one extra affordable studio. Matz confirms that there is a higher demand for
smaller studio units, based on the City's housing study and that they are trying to serve a lower
price point. Chris Koeplin of Beverly Crossing, confirms.
Thomson asks about the differential in rents. Applicant Chris Koeplin, Beverly Crossing, shares
the affordable housing rents: a studio is $1,278, affordable one - bedroom is $1,311, and
affordable two- bedroom is $1,571. Koeplin believes their CFO obtained the rates from DHCD
and he believes it includes a utility allowance. Clausen states that HUD would not include utility
allowance.
Ellen Hutchinson asks what the square footage of the 3 one - bedroom units was before the
change to studios. Koeplin tells her it stayed the same at 582 square feet and because DHCD
requires 750 square feet for a one - bedroom then they had to change it. He reiterates that there is
also a market demand for it. Thomson confirms that they are not shrinking one - bedrooms to
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make studios. Koeplin agrees. Hutchinson suggests it is a requirement by DHCD. Dissette tells
them there is a waiver process at DHCD level they could pursue but decided not to.
C. Barrett asks for clarification about the plan they approved in June 2016 with 11 affordable
units and that the new plan also has 11 affordable units and there is no change in the number of
units. Dissette confirms.
Dissette states that in a regulatory agreement that you can elect to have floating units and fixed
units and what that means is what happens when somebody earns out of the category and they
are in an affordable unit. He suggests the preference at the state level, and the greater benefit to
the city, would be in floating units. Prior they had checked the box to do fixed units, but now
they would like to check the box for floating units.
Thomson asks him if there was no regulatory agreement at this point. He tells him not currently.
Wynne clarifies that a draft should be submitted to the city but is not required prior to the
Board's approval.
C. Barrett asks based on the comment regarding the floating units, does the applicant need to get
preapproval to change the affordable apartments. Wynne believes as long as they are dispersed
throughout and not all on one floor. Dissette states that an annual census report needs to go the
state.
Craft asks that this won't change the location of units if changed to floating option. Dissette tells
him that is correct.
Hutchinson: Motion to find the proposed modifications to be minor in nature. C. Barrett
seconds. Motion passes (8 -0).
Hutchinson: Motion to approve the requested modifications with the requirement that the
Planning staff receive a draft of the regulatory agreement and that it be recorded
prior to occupancy. Matz seconds. Motion passes (8 -0).
Cluster Subdivision Plan Chapman's Corner Estates (Settlement Plan) - Request for One
Year Extension of Construction Completion Date (July 28, 2017) by Manor Homes
Development LLC
Thomson notes they are requesting a 1 -year extension of the construction deadline until July 28,
2018. No one is present for the applicant. Hutchinson asks what happens if the Board denies an
extension. Thomson answers they would have to come back for another permit.
Mack: Motion to grant the request of a 1 -year extension of construction till July 28,
2018. Flannery seconds. The motion passes (7 -1, Matz opposed).
Bond Reduction Request - Open Space Residential Design (OSRD) Site Plan & Definitive
Plan - 122 Cross Lane, (aka Greening Way) - Benco, LLC
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Thomson explains the applicant is looking to reduce the bond from $84,150 to $34,650, a
reduction of $48,500. He asks if the City Engineer has reviewed this issue. Wynne confirms. She
adds that the last modification the Board made granted the applicant the right to release the lots
without conveying the open space and the trigger changed to the release of the performance
bond. She explains she interpreted that to be when the performance bond released in full, but she
suggests that the Board offer no further reductions be made until all requirements have been met.
Mack: Motion to grant the requested bond reduction subject to the condition that no
further bond reductions shall be approved until all conditions of the original
decision have been met. Craft seconds. The motion passes (8 -0).
Continued Public Hearing — Special Permit Application #154 -17 — LP Henderson Road —
Construct Airport Hangar in Water Supply Protection Overlay District —1010 Hangar,
LLC, c/o Haves Engineering, Inc.
Matz: Motion to waive the reading of the public notice. Seconded by Flannery. Motion
passes (8 -0).
Ogren explains that they applied for a Water Supply Overlay Protection District ( WSPOD)
permit to construct an airplane hangar and he appeared before the Board previously with some
confusion about how the process goes. He's had the opportunity since that meeting to meet with
the Salem Beverly Water Supply Board and their consultant and come to further clarification. He
explains that the application was for the WSPOD and was simply a special permit and not an
application for site plan review. He tells them they did receive correspondence from the two
consultants of the Water Board in June and he responded to them on July 11 after doing test
holes. He said Meridian Engineering had three questions and he has a copy of his response to
those concerns. He tells him that he wants to discuss that because he only became aware of the
comments from the City Engineer when he saw Mrs. Wynne's update to the Board. She reminds
him that they were emailed out to him May 23r He said he did not see them prior and notes
most of those questions relate to the conservation commission review. He responded responses to
those comments on July 17 He suggests they start the discussion on any questions relative to
the response between him and Meridian, and the Salem & Beverly Water Supply Board.
Thomson asks if there was a City Council meeting the night before. Ogren tells him that it was
his understanding they voted the amendment to the lease. Wynne confirms the lease approval by
City Council and that it reflects the current building size.
Thomson explains that the Board is expected to review a special permit but are also reliant on the
Salem & Beverly Water Supply Board and their review of the issue and they just got the
information that afternoon. Ogren tells them that the response came on July 1 l Wynne
confirms that a subsequent response came earlier that day.
Thomson asks representatives of the Salem ,Beverly Water Supply Board if they have any
remaining concerns.
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Charlie Wear, Meridian Engineering, consultant for the Water Supply Board, thanks for the
cooperation of Mr. Ogren. He explains that one of the issues is adding some numbers to the plan
to clarify details. He also mentions there are some old catch basins and that Ogren has discussed
with some of the airport representatives that the drainage structures have been disconnected at
the runway which was abandoned several years ago. He adds they are recommending a condition
that catch basins should be removed or filled with sand. His only other recommendation would
be to put a note in the plan, stating that the area was not within a Zone A. Ogren explains he had
not added that to the plan; it can be easily done.
Wear explains that the zoning section is difficult to comprehend and it talks about uses that are
not allowed in the district one of which is any building that has storage of hazardous waste (he
believes), that a floor drain is not allowed. He suggests the need to clarify what the definition of
hazardous waste is because it makes reference to a State regulation. He recommended leaving
that up to the Zoning Enforcement Officer (ZEO) and condition it such that if floor drains were
required, that they be connected to the sewer and that a oil /water separator be installed, and that
could be handled through the sewer department. He also suggests that the Board condition that
the plan be in compliance with that section of zoning that discusses storage of hazardous
materials, which puts it in the hands of the ZEO. He says there are four conditions that Water
Supply Board is requesting. Peter Smyrnios, Salem Beverly Water Supply Board, tells the Board
that Wear is accurately representing their concerns.
Matz clarifies that the intent was not to prohibit floor drains within the district, the intent was to
prohibit floor drains that directly discharge into the ground. What is permissible is to have floor
drains that connect to the City sewer system through an oil /water separator. Wear states that he
agrees with that intent, but that is not clearly stated. He adds that floor drains are not allowed to
discharge to the ground under any circumstances. They are happy relying on the ZEO's
interpretation. Matz also adds the intent to abandon catch basins and fill with sand is for the same
reason and so they are not potential pathways of migration for gasoline and fuel oils considered
hazardous. Thomson clarifies, if they are going to approve it, isn't it sufficient to add a
requirement that floor drains in the hangar be connected to the public sewer. Matz agrees.
Wynne mentions that there was a comment letter from the Conservation Commission noting five
conditions in their approval. The Board could condition it subject to the letter submitted as
typically done. Ogren mentions an Order of Conditions was issued and that part of those
conditions was that the City Engineer wanted to have additional time to review it. He adds that
he can't guarantee that his responses are acceptable to Mr. St. Louis but he believes that they are
not related to the special permit. He suggest the board could subject the approval to the
comments of the City Engineer, but they may not be complete.
Wynne tells them the only other letters were recommendations from the Board of Health and the
Engineer's letter. Thomson confirms they have the Conservation Commissions letter; the note in
LEC's letter about Zone A not finding any tributary to be added on the plan; the three items
identified in Mr. Wear's most recent letter; and they are modifying the hazardous materials to
specifically state that there should be a floor drain connected to the public sewer, and that the
basins should be removed or filled with sand, and dimensional requirements of the spillway be
added. Matz comments that based on his review, that LEC's conclusions are reasonable and the
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minor tributaries that become part of Zone A are done off of old GIS maps. In this case it was
field verified and he finds the conclusion acceptable.
Wynne asks Ogren if he foresees any changes to the plan based on the letter he submitted. Ogren
tells her he doesn't think it affects the use and that they are there for a use special permit.
Thomson tells him they will rely on Conservation Commissions condition then.
Matz: Motion to close the public hearing. Seconded by N. Barrett. Motion passes (8 -0).
Matz: Motion to approve Special Permit Application #154 -17 for LP Henderson Road to
construct an airport hangar in the Water Supply Protection Overlay District: to
include Order of Conditions set forth by Beverly Conservation Commission; to
include the additional conditions agreed upon between Salem Beverly Water
Supply Board, their consultant, and the applicant; to include the conclusions
reached by the consultant LEC that there is not a tributary to the public water
supply within 200 feet of the project; to include that the floor drains will be
connected to an oil /water separator and for discharge to the City sanitary sewer
system; and to include the abandonment or closure of additional exterior catch
basins in accordance with local, state, and federal regulations; and to include
standards set forth from the Health Department. Seconded by Mack. Motion is
approved 8 -0.
New or Other Business
There is no new business.
Adjournment
Mack: Motion to adjourn the meeting. Seconded by Flannery. The motion passes (8 -0).
The meeting is adjourned at 9:38 pm.
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