9-25-18 BPB MinutesCITY OF BEVERLY
PUBLIC MEETING MINUTES
Board: Planning Board Meeting
Date: September 25, 2018
Location: Beverly City Hall, City Council Chambers
Members Present Chair Ellen Hutchinson, Vice Chair Ned Barrett, William Boesch, Zane
Craft, Ellen Flannery, Allison Kilcoyne, David Mack, Wayne Miller
Members Absent: James Matz
Others Present: Assistant Planning Director, Darlene Wynne
Recorder: Samantha Johanson, Recording Secretary
Chair Ellen Hutchinson calls the meeting to order at 7:02 p.m.
Subdivision Approval Not Required Plans
a. 66 Sturtevant Street — Edwin & Heidi Sopp
Materials provided into the record:
• Form A — Subdivision Approval Not Required Application & Narrative
• Subdivision Approval Not Required Plan
• Staff Report
Michael Landers, Attorney from Topsfield representing the owners of the property, Edwin & Heidi Sopp,
explains that the applicant is away on a business trip and couldn't be present at the meeting. He shows the
Board the plan of 66 Sturtevant Street and describes the letter he included in the application from the
Building Inspector. They are looking to carve out three portions of parcel D, C, and Lot 2A, all
considered unbuildable because it either lacks adequate frontage or is not an adequate size. They are
looking to retain the middle portion which is Lot 213, which is about 42,000 s.f. and has the existing
dwelling on it. He tells them that the Building Inspector provided them with two options. The first one
would be a traditional ANR analysis where the Board would look at the right of way. He says the right of
way was shown on two different plans in 1964. He opines the determination was then made that it the
right of way was adequate and meets the standards as required by the Board. He mentions in terms of its
existence the three different ways of determining access. The 1964 plans show it as the right of way and
he argues, it would be the only frontage that was allowed at that particular time. He says this is an
indication that the right of way exists and the Board determined that it did exist as a right of way before
the establishment of the zoning bylaw for the subdivision law. He explains that this particular right of
way services the Sopp's property, the Star House property, the Anna Vinn property, and the existing
dwelling that is listed as Lot 2B. The roadway has existed on a plan approved by the Board and it services
adequately the -four lots that have existed there. He tells them that the analysis under the first ANR is
acceptable.
Landers says the second analysis is unique. If the Board make a determination that the right of way does
not comply with the adequacy requirements of the typical standard, then they would have a completely
non - conforming lot, which is still legal, and the lot is legal, but it has no frontage. The Board would have
to carve those three lots from it, but the lot would still have no frontage. However, they wouldn't be
reducing the non - conformity. He has no preference on what the Board should decide.
Hutchinson asks how the Anna Vinn property is accessed. Landers explains that there is a roadway that
goes through the Star House property and out into the easement. Landers tells Hutchinson that the Anna
Vinn property is accessed from the right of way from the driveway, as well as the Star House. Hutchinson
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asks about the condition of the right of way. Landers tells Hutchinson that it is beat up, is 40 -foot wide,
and black topped in certain areas. Landers explains that it is adequate to service those lots. Landers
comments that there is a daycare center /school which is accessed through the right of way and all
emergency vehicles are able to access it. The right of way is maintained by the owners, not the City.
Hutchinson asks Landers what he considers to be the frontage on the right of way. Landers tells
Hutchinson shows an area on the plan which gives them about 124 feet of frontage. They are not
including the 40 -feet width as part of the size. Hutchinson then asks if Lot 2A, C, and D would all be
considered as unbuildable lots. Landers tells Hutchinson that Lot C and D would be combined with the
Sopp property and Lot 2A would remain vacant.
David Mack asks what the purpose is other than reconfiguring the lots. Landers tells Mack that the house
exists and the applicant would like to sell the house. He would like to keep the land for his own existing
lots C and D. and Lot 2A he would keep as an unbuildable vacant lot. He says he is looking to sell the
existing house. In the future, he could make a subdivision application for that lot.
Hutchinson asks if there is a chain somewhere that bars access. Landers tells Hutchinson he has not seen
anything that restricts access on the 40 -foot right of way.
Darlene Wynne asks if there was a possible combination of Parcel D with the Sopp property and if there
was a right of way for the two parcels or is it an easement. Landers comments that it is a right of way and
the City has never taken the title of that property. The title of the property vests to the owners on either
side until the City decides to take it. Landers then explains at that time the Sopps would have access to
that property through the right of way. Landers comments that if they said they needed 50,000 s.f of lot
to be able to turn it into two lots, then they wouldn't be able to combine all the lots together and say now
we have 50,000 s.f of continuous lot space.
William Boesch asks if they will have an easement across Lot 2B and the right of way. Landers
comments they have an easement through Lot 2A on the right of way to get to Sturtevant Street. Landers
shows where that is on the plan. Boesch asks about Option 2, if how it is currently configured does it not
have enough frontage. Landers explains that the Building Inspector's analysis is that if the Planning
Board makes a determination that the right of way exists under the standards that are required, then that is
an actual public way and there is enough frontage and it is adequate. Landers then comments that if the
Board were to make a determination that it is not adequate and doesn't meet standards, then it has no
frontage. There is no access to the dwelling through Sturtevant Street. Boesch asks if it is currently non-
conforming. Landers tells him that is correct.
Ned Barrett comments that they don't necessarily need to determine whether or not it is a sufficient right
of way, but they can endorse the plan.
Hutchinson comments that if it doesn't meet all the requirements for the lot size and frontage, they can go
the non - conforming route and treat this as one entire non - conforming lot and cut off different parcels
from it.
David Mack asks if it would still be an ANR Plan, because it doesn't have frontage, and whether it can be
grandfathered as a buildable lot. He comments that the ANR statute requires them to make the
determination. Landers comments that if you have parallel streets, two lots that are back to back to each
other on those streets, both houses have inadequate frontage under the bylaw and its grandfathered in, so
then they would have no issue with endorsing an ANR plan in that situation. Landers explains that the
only difference is that rather than inadequate frontage because of the pre- existing non - conforming lot
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under the Building Inspector's comment there is no need for frontage for this. Landers then comments
that an ANR will still be appropriate because you are not creating a subdivision. Landers explains that
under the Building Inspector's analysis and opinion this is a lot that under the requirement of frontage is
zero, because that is what they have currently.
Barrett asks if because they are creating a non - buildable lot they are not creating a subdivision and that is
why it is an ANR. Landers tells him yes. Barrett comments that if someone were to come to the Board in
the future and wanted to subdivide the lot, they would need to come back to the Board because they
would have a lack of frontage. Landers explains that in the future if the applicant came back and said they
want to take off the non - buildable designation of the plan, they would not be able to do that because that
lot would need to have frontage as it is not grandfathered.
Boesch asks that if they say it is approved as an ANR they don't need to go any further. Landers explains
that the most important thing the Board needs to do is sign the plan as approval not required, because that
is what gets recorded. Landers comments that a motion indicating that the determination of the Board is
the subdivision control law is not applicable to this particular lot then endorsing the plan would be an
appropriate action of the Board.
Barrett asks if they can imply that the right of way provides sufficient frontage and if so can that
somehow be used down the line. Landers comments that a decision was made in 1964 that the road was
adequate. Landers tells the Board it makes most sense for the Board to endorse the plan but with an
express designation to make no finding in the adequacy of the road.
Mack asks Wynne if they have investigated whether this concurs with the Council and Building Inspector.
Wynne tells Mack that they vetted the Building Inspector's interpretation and they don't take a position
on which way the Board should go.
Mack asks if the owners have been notified on that right of way and Landers tells him that Mr. Sopp has
spoken with everyone about this. Mack comments that the existing right of way is adequate with real
access.
Hutchinson comments that they could find that the right of way does meet all of the requirements. She
asks if that is the route people don't want to take. Ellen Flannery comments that it is a 40 -foot right of
way. Flannery asks what the recognized size of a right of way would be and Wynne tells her that it is a
40 foot right of way and that is reasonable and meets the requirements.
Wayne Miller asks if it has been 50 years since they determined this as a right of way. Barrett explains to
Miller that it was determined in 1964. Landers tells them that in 1956 there was a plan put on record
which was not endorsed by the Board. Landers then explains that the 1964 plan was an ANR plan and
was endorsed by the Board. At that time that created what amounts to the Star House lot. And the only
way that Star House could've been created would've been for the Board to have made a determination
that the right of way was adequate. Landers comments that with regard to the analysis, they are not saying
that the quality of the roadway couldn't change over the course of 55 years. It is a roadway that was in
existence before the adoption of the Subdivision Regulations. Landers tells the Board that if they put the
analysis aside, the question is whether the way is adequate under the standard requirements as it has been
like that for the past 55 years. Landers explains that there have never been any complaints and that there
is a fair amount of traffic on this roadway. In addition, emergency vehicles have been able to adequately
use the roadway.
Flannery asks when the Star House was created and Landers tells her less than 25 years ago.
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Hutchinson comments that she doesn't feel comfortable judging whether or not the way is adequate
because over a number of years there hasn't been any complaints or any problems. She believes they are
probably in agreement that it is a non - conforming lot and it does not make it any more conforming by
carving it out. She is debating whether or not the Board should get an opinion from the legal counsel.
Mack comments that maybe they should come back at some point with evidence of the adequacy of it.
Landers comments that the Building Inspector with regards to this issue is the one who makes that
decision. Landers goes on to say that the Building Inspector consulted with the City Solicitor. Landers
tells the Board it is that determination of the Building Inspector and that he is saying that they can endorse
the secondary analysis. Landers then comments that as long as long as there is a provision in the Boards
acceptance and approval that they don't consider that as part of your analysis. But if there was a concern
down the road then they have already created a right of way and maybe they can combine it with
somebody in the front, and may be able to create three more lots. Then that individual would have to
come before the Board with the adequacy of the right of way argument, and not the secondary argument
they are making.
Barrett comments that he would prefer not to go in the direction of determining if it is a right of way. He
thinks it is best to get a sign off from the City Solicitor. Landers tells Barrett they are willing to accept a
continuance, but they can still provide them with additional information to explain the adequacy of the
way.
Barrett: Motion to continue the matter to next meeting, October 16, 2018. Flannery seconds the
motion. The motion is approved (8 -0).
Mack: Motion to refer and seek the opinion from the City Solicitor's office in the meantime and
to determine the Building Inspector's opinion of the non - conformity determination.
Barrett seconds the motion. The motion is approved (8 -0).
Recess for Public Hearings
Flannery: Motion to recess to Public Hearing. Allison Kilcoyne seconds the motion. The motion is
approved (8 -0).
Continued Public Hearing: Livingstone Avenue Definitive Subdivision Plan (7 Porter Terrace) —
Livin2stone Avenue — Extend existing roadway and create 3 new residential lots — 7 Porter Terrace,
LLC
Materials provided into the record:
• Third Party Peer Review of Storm Water Management and Presentation by William Ross
Bill Ross of New England Civil Engineering in Salem, MA tells the Board that he is the Peer Reviewer
for the project. He tells the Board he will also be doing the same presentation for the Conservation
Commission as there is a wetland resource issue.
Ross points out on the plan where the project is and tells the Board that the applicant is proposing a three
lot subdivision with access from Livingstone Avenue with a parcel that currently fronts on Porter Terrace.
Ross shows them the wetland resource which is an intermittent stream that runs along Livingstone
Avenue and comes to the closed drainage system on Porter Terrace. In addition, he shows a delineated
100 -foot buffer zone and a 50 -foot no build zone and a 25 -foot no disturb zone. The house corner is
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staying outside the no disturb zone but there is proposed grading and earth works within the no disturb
zone and corner of the building is in the no build zone. He says the project does not go far enough to
minimize the effects on the resources. They are not looking to redesign this project for the applicant, but
some simple changes can help minimize the impact.
Ross tells the Board that this proposal increases the impervious surface, by adding several driveways and
three buildings. The stormwater treatment system consists of collecting the majority of the run -off from
the roof leaders which will discharge them into three drywells and then collect the road drainage and treat
it in the storm water treatment system. It will then be detained in a large tank underneath the ground and
then discharged out to Porter Terrace. Ross tells them that the project does meet stormwater standards
regarding pre- and post -peak run -off, groundwater recharge, and water treatment. The applicant has
shown that the pre and post peak run off up to Porter Terrace is not increased, but the volume of runoff
increases significantly. So the third party reviewer has requested information on the rest of the drainage
catchment served by Porter Terrace, and they want to be sure that the delayed runoff is not creating any
increased peak to Porter Terrace.
Barrett asks Ross about the delayed run off and if the peak run off is not increased but that the water will
be. Ross tells him that is correct. Ross explains that the run off increases but then goes down again. They
can decrease the peak rate but have a larger volume.
Ross comments that the test pits were not located by the drywells and it seems that the drywells are
positioned either at or below high ground water. So they are requesting additional ground water soil
information so that they can relocate the detention basins. In addition, there was some concern with
15 Porter Terrace's water in the basement, and that the drywell should be located further from that
property. He explains that the storage from the roof drains is essential to meet the pre and post runoff He
recommends that the applicant submit final plans before building permits are approved showing proof that
they installed gutters. Ross tells them that one big component of this system is an underground tank that
provides the pre and post detention. He is not in favor of the system that is a subsurface tank which
consists of a lot of PVC pipes assembled together and wrapped in a water tight membrane. It is essential
that it stays completely water tight to remain empty to collect the run off from the roofs. The membrane
underneath the ground seems to be prone to future issues.
Ross comments that it will be good to define how the owner is going to know where the underground
detention basin is located. The engineer suggested a protected layer in the ground or something else so
they know something is underneath. Ross comments that they have requested some information for some
alternatives for that and methods to confirm that it is water tight with a vacuum test.
Miller asks about repositioning it somewhere else. Ross comments that is an option and can be
constructed and repositioned with different materials. Ross tells him the alternative would be a detention
pond.
Craft asks if the lowest level of a detention pond apparatus would below the high ground water. Ross
explains that if the tank leaks and remained full it would operate as if there was no tank at all. The water
would flow into the catch basin and the peak discharged to Porter Terrace.
Barrett asks if the system fails because it is not water tight is there an alarm system to warn them. Ross
tells Barrett that it could be possible, but since they are running as an HOA, they would have to decide
who would get the alarm. Barrett asks if they can have guidelines built into a homeowners' agreement
that they could condition this. Ross tells him that there really isn't a way to do this because even if there
is a leak you may not be able to find it in the membrane.
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Hutchinson asks about the implications of that area being paved over for a driveway and Ross tells her
that there would be no impact and it would be the most protected part.
Mack asks about it being 2 -feet below the surface and if they needed to drill a hole for a basketball hoop
would there be an issue and would they need to consult with dig safe? Ross comments that would be a
private issue with the HOA.
Barrett comments that they would have to put something in the ground to alert the homeowner that
something is in the ground. Ross comments that they requested a use restriction be placed in the front
yard. Barrett then asks if other than a retention pond they could have a surface pond. Ross tells him a
surface pond or a concrete tank would be options. Ross explains it is surrounded by a flexible membrane
that is sealed off.
Miller asks what the total volume is that the tank holds. Ross tells him he does not have that information.
Ross then comments that the storm water treatment is provided through a separator which removes oils
and grit before it gets detained. Ross comments that there is no drainage alteration permit currently. He
comments there will need to be coordination with the Fire Department on the fire hydrant location. He
then comments the easement itself requires that the drainage structure is the responsibility of the
individual owners for the drainage infiltration system. He believes it needs to be clarified if that is just
one owner or all of them. If only one has a tank and no catch basins in their lots, then he is not sure how it
can be described as who is responsible for which. In addition, the same stands for the responsibility of the
road which is half paved. He thinks this needs to be further clarified.
Craft asks if the applicant will need to adopt the recommendations in order for this to be a feasible storm
water management system. Ross tells him they are easy to change and relocate things and they will need
to address the easements of this one yard in particular which needs a detailed explanation of what
restrictions can and can't be done. The report also describes keeping the access for one of the easements
open for the City to maintain. The Conservation Commission may come back and want to reconfigure the
lots the best way that they can to not encroach.
Mack asks if the rate of run off and volume of run off can be decreased as it has to be as good as it was
before the project. Ross tells Mack that the rate is what is covered by the standards and not the volume.
Mack comments that there is an increased volume on the report towards Porter Terrace. Ross clarifies that
it is an insignificant peak and a significant volume.
Hutchinson comments that the post development rate decreases and then it increases to Porter Terrace.
Hutchinson then comments that post development, the rate doubles heading towards Porter Terrace. Ross
tells her that is correct but there is a large pipe and it should not be at capacity into a closed system.
Hutchinson is most concerned about the Porter Terrace figure. The pre development figure is 1,064 cubic
feet and post development it quadruples to 4,463 cubic feet. Ross explains that is the drawn out larger
volume.
Mack asks if the rate of run off also increases and if so is that consistent with the standards. Ross
explains that the rate of the site overall increases, the peak rate does not increase. Ross then explains that
the total volume in all directions increases. They are allowed to increase volume as long as it doesn't
impact downstream drainage.
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Hutchinson asks if there is a negative implication for Porter Terrace because of the pre development peak
run off volume. Ross comments that if Porter Terrace is receiving its peak at the time that the delayed
volume is then Porter Terrace could be impacted. Ross tells Hutchinson that if Porter Terrace's peak
occurs later it would have no effect on Porter Terrace.
Miller asks if increasing the volume has no dilatory effect on it but increasing the peak a little bit does.
Ross says, they aren't really sure if it will affect it or not. Ross comments that they are already having
problems now and if there is an increase in volume it could cause problems at a later time on Porter
Terrace. Ross comments that the applicant's engineer is confident that there is adequate capacity and the
slope of the 24 inch pipe could handle the peak.
Miller asks if the Board had requested a Peer Review. Hutchinson tells him that they did.
Hutchinson asks if anyone from the Public wants to ask questions.
Councilor Lang is confused about Table 4 about the volumes vs. the peaks and would like to see the new
information once it is finalized. Ross comments that the water may not be able to find its way to the catch
basin. Ross explains that it would be sending more rain water to the drain.
Miller asks if that won't affect basements. Ross explains that there will be less water into the ground and
it will send most of it towards the City pipes.
Barrett comments that as long as it is sufficient enough to move the water away from the site.
Mack: Motion to continue the Public Hearing on the application until October 30, 2018 and
grant an extension of time to review the application to October 31 st, 2018. Craft seconds
the motion. The motion is approved (8 -0).
Flannery: Motion to close Public Hearing and reconvene meeting. Mack seconds the motion. The
motion is approved (8 -0).
Continued Discussion /Decision on Preferred Plan: Open Space Residential Design (OSRD) Initial
Review Application #11 -18 — Create a new private way for 4 new residential lots /units — Off
Thaxton Road and Grover Street — Hickory Street Realty Trust and Sprint Hill Ventures, LLC
Bob Griffin updates the Board. He tells them they drew up revised concept plans and the client hasn't yet
approved them. They are asking for a continuance.
Mack: Motion to continue Public Comment period on the Concept Plans to October 16, 2018.
Flannery seconds the motion. The motion is approved (8 -0).
Minor Modification: Hillside Avenue Definitive Subdivision Plan — Create 20' wide by 100' lone
access way off Hillside Avenue to create accessible frontage for existing parcel for new single family
dwelling — Goddzilla LLC /ASB Design Group and Gregory and Helga Senko
Materials provided into the record:
• Plans from ASB Design Group for Hillside Avenue Definitive Plan — Goddzilla LLC /ASB
Design Group and Gregory and Helga Senko
• Letter from Alexander & Femino on Hillside Avenue Definitive Plan — Goddzilla LLC /ASB
Design Group and Gregory and Helga Senko
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• Settlement Agreement for Hillside Avenue Definitive Plan — Goddzilla LLC /ASB Design Group
and Gregory and Helga Senko
• Planning Board Decision on Hillside Avenue Definitive Plan 5/24/17
• Engineering Department letter From Sean Ciancarelli, Beverly Assistant City Engineer
• Staff Report on Minor Modification to Hillside Avenue Definitive Subdivision Plan
Len Femino of Alexander & Femino, representing the applicant, tells the Board that the applicant was
before the Board in May 2017 for approval of a one lot subdivision. The decision was appealed. He
explains that it has been in the Land Court for the past 18 months. They reached a settlement, and it is
before the Board because it resulted in a minor modification to the plans. Femino explains the settlement
was regarding the drainage which was downhill towards the plaintiff's property on Northern Avenue and
they wanted more protection. They worked with engineers and they have expanded the Low Impact
Development (LID) techniques. He says there was shown a pipe underground that connected one to
another going downhill and they asked for that to be removed. There is a no cut zone, but they are adding
seven more trees to improve it for the neighbors. They have improved the project to please the two
abutters.
Mack asks if there are any abutters in attendance. Femino is not sure but comments that they are in
agreement with the settlement.
Hutchinson asks if that is the implementation of the settlement that is before them. Femino explains it
needs approval as a minor modification.
Hutchinson asks Femino to show the Board the subdivision plan and the new changes.
Femino points out the LID and comments that it was part of the original plan. He shows them various
LIDS which are larger and deeper. He then shows them the pipe that was underground and that the
abutters didn't like the idea that there was a pipe running downward towards their homes. They thought
there would be possible run off underground. They wanted more planting added and a berm which will be
higher. The city engineer can require that it be made even higher during construction site work
inspections.
Hutchinson asks if the removal of the pipe will affect water drain flow. Femino says no and that drainage
is all underground. The system saturates and does very well even with the 100 -year storm analysis.
Mack asks if the council for the plaintiffs has seen the plan. Femino answers they have. In addition, their
engineer has reviewed it and commented on it and approved it. It went before the judge. Femino
comments that once the City Solicitor signs the settlement agreement and the Board approves this, then
the case will be dismissed and the client can apply for the building permit.
Wynne asks if this is binding on the City Engineer. Also does it need to include a condition that the City
Engineer review it or is there another mechanism for the City Engineer to know of his involvement.
Femino comments that the client will request a review of it.
Mack: Motion to deem the proposed changes as a minor modification. Barrett seconds the
motion. The motion is approved (8 -0).
Mack: Motion to approve proposed minor modifications to the subject plan. Barrett seconds the
motion. The motion is approved (8 -0).
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Set a Public Hearing: Smart Growth Overlay District Development Application #01 -18 — 108 Sohier
Road (Anchor Point) — Construct 75 units of affordable family housing and 5,000 sf of office space —
Anchor Point, LLC and Harborlight Community Partners, Inc.
Barrett: Motion to set a Public Hearing for October 16, 2018. Flannery seconds the motion. The
motion is approved (8 -0).
Set a Public Hearing: Site Plan Review Application #137 -18 — 582 Hale Street — Construct new 2-
unit residential building with parking beneath — Skomurski Development LLC and 586 Hale Street
LLC
Craft: Motion to set a Public Hearing for October 16, 2018. Barrett seconds the motion. The
motion is approved (8 -0).
Approval of Minutes (as available): July 17, 2018; August 21, 2018
Hutchinson tells the Board they will be tabling the minutes to October 16, 2018 meeting.
New /Other Business
a. Planning Board application checklists — updated for acceptance
Discussion on the proposed checklists.
Flannery: Motion to accept the checklists. Boesch seconds. The motion is approved (8 -0).
b. Wynne comments that they need to schedule a combined City Council meeting, possibly in
November for the proposed Marijuana ordinance. She expects the Joint Public Hearing will be
November 5, 2018.
Adjournment
Mack: Motion to adjourn the meeting at 8:26 pm
approved (8 -0).
Barrett seconds the motion. The motion is
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