2003-03-18
City of Beverly, Massachusetts
Public Meeting Minutes
BOARD: Planning Board
SUBCOMMITTEE:
DATE: March 18, 2003
PLACE: Beverly City Hall
BOARD MEMBERS PRESENT: Chairperson Richard Dinkin; Joanne Dunn, John
Thomson, Ellen Flannery, Patricia Grimes, Daniel
Hamm, William Betts, Elizabeth McGlynn
ABSENT: Robert Rink
OTHERS PRESENT: Planning Director Debra Hurlburt, Asst. Planning
Director Leah Zambernardi
RECORDER: Jeannine Dion
Chairperson Dinkin calls the meeting to order at 7:30 p.m.
Chapman’s Corner Estates Preliminary Plan – 2 Boyles Street – Whitehall Hill
Realty Trust/Henry Bertolon
Attorney Thomas Alexander appears on behalf of the applicant, Whitehall Hill Realty
Trust/Henry Bertolon. He states the applicant has decided to proceed with the preliminary
process, which is an opportunity for the applicant to seek input from City agencies and
members of the Board. The applicant has had an opportunity to meet with the City
Engineering Department and the Planning Department and changes have been made as a
result of their comments.
Bob Griffin from Griffin Engineering presents a brief overview of the preliminary plan.
·
There are two wetlands on the parcel (identified as Wetlands A and B). There
has been a delineation of the wetlands approved by the Beverly Conservation
Commission. There are potential vernal pools. The applicants were asked to
identify them this Spring.
·
The Art Gallery is part of the property.
·
28 and 30 Boyle Street are approximately 2 acre parcels each.
·
The entire parcel is approximately 29 acres.
·
The proposal is to construct single-family subdivision.
·
The layout includes approximately 4,700 feet of new roadway.
·
There is no direct connection from the subdivision to Hale Street.
·
All of the roads will comply with the Subdivision Rules and Regulations (33 feet
of pavement, sidewalks on both sides, granite curbing, street trees, street lighting,
etc.)
·
Griffin provides an overview of the road layout.
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March 18, 2003
Page 2
Dinkin asks if members of the Board have questions.
Grimes asks a clarifying question regarding lots 28, 29, 30 and 31. Griffin responds in
relation to the restrictions associated with the granting of a Special Permit for a pork chop
lot, the applicant thinks the line of the parcel essentially evaporates the lot line so the
restriction no longer applies. Attorney Alexander states they would address this in the
definitive plan stage.
The City Engineer, Frank Killilea asks when the applicant plans to provide drainage
calculations and a traffic impact report. Alexander responds that the applicant expects to
address that in the definitive plan.
Dinkin states the Planning Board has always proceeded under the assumption that the
purpose for review at the preliminary stage is to provide guidance as to whether a
subdivision configured as presented is approvable. He states the problem is given that the
applicant does not want to demonstrate until the definitive stage that a portion of the lots
shown on the preliminary plans are in fact legal lots. How then can the Board determine
whether the subdivision configured as shown is approvable should the engineering prove
that all of the underlying factors are there?
Alexander responds that he knows that in several instances the Planning Board on the
preliminary level does not approve or disapprove. They vote to accept the plan as filed,
not vote, or not accept it. If the Board has concerns and wants to make sure those
concerns are addressed, any preliminary ruling would indicate that the Board had
concerns. Alexander states he believes that the preliminary process is about taking the
concerns into account when designing the definitive plan.
Thomson asks a clarifying question regarding the demolition of existing structures. Griffin
responds that there is a plan to demolish the existing structures including the former art
gallery building, 2 Boyles Street, and possibly 28 Boyles Street.
Thomson asks if the applicant has applied for an application for demolition permit. Griffin
responds ‘yes’.
Thomson asks if the applicant is aware that there is preservation restriction associated
with the former art gallery building. Griffin responds that there is a preservation
restriction on the deed for that property.
Thomson states that the preservation restriction is held by the Beverly Historical Society.
Griffin states that if the restriction is not released, the applicant will not demolish it.
Dinkin asks if there are additional questions from members of the Board. There are none.
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March 18, 2003
Page 3
Dinkin states the Board may decide to not act on the preliminary plan. The Board may
also choose to act and approve the preliminary plan or disapprove the preliminary plan. A
vote to approve a preliminary plan does not guarantee that a definitive plan would be
approved. It merely gives guidance to the developer as to whether a subdivision
configured in the way that the subdivision is configured can be approved. It has been
represented to the Board that this is a subdivision that requires no waivers and is totally
conforming yet there is a question whether some of the lots that are proposed should and
can be legally created in this subdivision.
Dinkin asks if there is discussion by members of the Board.
Grimes states it seems to her that there are questions regarding several of the lots. There
are still questions that need to be addressed as to the validity of the entire plan. She is
concerned about the traffic and there are some outstanding questions that need to be
resolved.
Dunn asks a clarifying question regarding the roadway layout. Alexander states the plan is
not a definitive plan. The definitive plan will address traffic, drainage and other topics in a
more detailed fashion.
Dinkin states he concurs that matters of engineering, traffic study and drainage reports are
most appropriately left to the definitive stage. He does not, however, concur that the
legality of the proposed lots is most appropriately left to the definitive stage. Dinkin states
his impulse in the absence of a brief describing the position of the question of the law,
would be to say that this is not a suitable preliminary plan and ought not to be approved,
which is stronger than taking no action.
Alexander states he is prepared to provide the Board with a brief on the applicant’s
position regarding those issues for the City Solicitor to review prior to the next meeting.
Hurlburt requests that the applicant provide the legal brief in plenty of time for the
Planning Board to review prior to the meeting.
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Dinkin asks if Alexander could provide the legal brief by April 1. Alexander responds
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that he could provide it by April 4.
Thomson:
Motion to table Chapman’s Corner Estates Preliminary Plan until the next
regularly scheduled Planning Board meeting on April 15, 2003, so that
Attorney Alexander may provide a legal brief for review and comment by
the City Solicitor, seconded by Flannery. Motion carries.
Prescott Farms – Site Plan Review Application #73-03 – Set Public Hearing –
Planned Residential Development – R-15 & IR Zones – Boulder Lane/Miles Group
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March 18, 2003
Page 4
Dinkin states Scott Houseman and the City Solicitor, Peter Gilmore are joining the
Planning Board members to discuss concerns of sequencing of a series of public hearings
necessary for the permitting process for Prescott Farms, which is contained in two
separate zoning districts. One of which is zoned IR and one of which is zoned R15.
There is an advisory hearing for a planned PRD for the residential portion and a Site Plan
Review on the IR portion. The Zoning Board of Appeals must hear a Special Permit on
the PRD and a variance on the residential housing on the IR portion. The applicants have
requested that both Planning Board matters occur prior to either of the ZBA matters. The
question we addressed to Mr. Gilmore was “Does the applicant have standing to request
the Site Plan Review prior to the granting of variance?”
Peter Gilmore states the Planning Board is not compelled to conduct Site Plan Review
prior to a variance, but it may do so if it chooses.
Attorney Thomas Alexander states the intent is not to do peril to anything. This is a very
unique situation and he thought it would make sense to submit the whole thing to the
Planning Board so that there was a uniform process for the whole project. The intent is to
give the city the ability to have a comprehensive review of the project. The Site Plan
Review process is an exercise in design and the applicant thought it would be best to go
forward with the design and be reviewed by the Board at one time.
Alexander states the applicant is not attempting to control anything. The applicant is
actually trying to work with the Planning Board and the Board of Appeals. At the end of
the day, this project is required to come before the Planning Board for Site Plan Review
anyway. In some communities Site Plan Review is required before acting on a Special
Permit. He cites a case in which the Site Plan approval occurred before issuing a Special
Permit.
Thomson expresses concern that if in the Zoning Board process there is a change in the
number of units or the general configuration of the site, which would turn it back to the
Planning Board. He expresses concern about spending the Board’s time.
Grimes states her main question, “Is the ZBA going to grant a variance?” because if the
ZBA is not granting a variance, then there is no project. The whole project hinges on the
variance. She expresses concern that the Planning Board could be doing a Site Plan
Review on a non-project, where people come to public hearings and the Planning Board
does not even know if the ZBA will be granting the variance.
Scott Houseman states the ZBA should not be granting a variance on an open-ended
request. They need detailed plans, such as those provided in Site Plan Review to consider
the plan.
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March 18, 2003
Page 5
Grimes states the Site Plan Review would have to be done if the variance is granted and
she does not know why the ZBA can’t ask for more specifics. Houseman states if the
applicant were to give the ZBA something specific, everything that is specific in the design
could be totally swept away by whatever the Planning Board decides.
Dinkin asks providing ZBA with the specific permit that you then can either choose to
grant, if you find a hardship or choose not to grant, if you find no hardship and then
requiring the applicant to come before the Planning Board with the now approved
variance, that Site Plan Review does increase the applicant’s exposure and may, in fact, if
the terms of the variance are so specific as to locate shrubs and parking spaces, may
require the applicant to return once more to ZBA and once more to the Planning Board.
He states he does not particularly have a problem with that.
Dinkin states he does have a problem with the city taking an action, which reduces a
developer’s proposal to less exposure to public input and discussion. He states absent a
variance, everyone needs to be talking about how this particular applicant will affect
adjacent residential uses. That may not be appropriate. Dinkin states if the applicant
comes to the Planning Board with “X buildings” in an IR zone and there are no areas that
permit him to do a project that is not permitted either by right or by special permit, then
the site plan needs to be assessed in the terms of the ordinance as it exists and as it applies
to the site on the date the hearing is held.
Grimes states if the public comes to the Site Plan Review it will be very confusing. They
are going to be asking the Planning Board questions that perhaps they should be asking
the ZBA.
Dinkin states it is very difficult to control the testimony on a public hearing on Site Plan
Review so that it doesn’t wander off into use issues. It is made more difficult if you are
discussing a Site Plan on a non-approved use.
Houseman recommends that the ZBA and Planning Board hold Joint Public Hearing.
Houseman introduces Andrea Fish, a co-chair of the ZBA.
Alexander states the applicant is required to appear before the Planning Board for the
PRD. The applicant thought this would be a good opportunity to submit the whole
project for vigorous review. He acknowledges that any determination that the Planning
Board makes is not a determination as to use and if, when it goes before the ZBA, there
are changes, the applicant will have to go back to the Planning Board to revise the Site
Plan. He acknowledges that Site Plans are very often modified.
Dinkin states he is having a problem because he does not think it is appropriate for the
Board to be reviewing a Site Plan on an unapproved use.
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March 18, 2003
Page 6
Dinkin states he does not think there is a way to manage the public hearing process for
this particular proposal and have all of the issues be crystal clear and the various layers of
responsibility permitting that exists between the two Boards be crystal clear and to have
what he would like to see, which is a bright line separating the approval process of ZBA
and the approval process of the Planning Board. There is no good way to do it. He is
very reluctant, as a matter of political philosophy, to invent new processes outside the
regulatory process. Dinkin states that since this is not the process that he wants, he is not
going to be the person to initiate that.
Alexander states the PRD process is fairly unusual in that it requires the Planning Board to
act before the ZBA.
Thomson asks what the applicant has asked for a variance for. Alexander responds that
the variance request is to allow residential in an IR zone.
Thomson asks if the applicant could address the use question first, then come back to the
Planning Board for Site Plan Review and then go back to the PRD.
Alexander states if you grant a variance for part of the project, it is an incomplete project.
The applicant was just trying to do something that was helpful. The Planning Board can
just stick to the PRD piece and it is fine with the applicant and he will come back should
he get the variance, for Site Plan Review. The applicant did not want to create more
problems by doing this. He thought they were anticipating the problem and getting in
front of it.
Dinkin states if there is not hardship on the IR lot, there is not a project. It makes sense
that this decision ought to be the first decision made.
Alexander states that it is the applicant’s desire that the ZBA hear this. The PRD is
pending, which requires that it go to the Planning Board first under the Ordinance. If the
Planning Board does not want to look at the variance piece, that is fine. He asks that the
Planning Board look at the PRD piece.
A five minute recess is called.
The regular meeting of the Beverly Planning Board is called to order.
Dinkin states during the recess a caucus discussed the possibility again of a single joint
public hearing addressing all issues. Dinkin states his problem with that proposal is that he
intends to offer testimony at the ZBA portion of the hearing and a single joint public
hearing would make his position incredibly awkward.
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March 18, 2003
Page 7
Thomson states he personally likes the idea of the joint meeting because it gets everything
out on the table at one time, and all of the information is there and the public only has to
come to one hearing.
Grimes states she thinks this pertains to a lot of Ordinances and Rules and Regulations
that are very complicated and it could be very confusing. She also states she does not
think there is anything wrong with getting more input rather than less input.
Dinkin states all of his experience in co-chairing joint public hearings has been with issues
with the substance of the matter being identical for both Boards.
Houseman states he believes the amount of input and information the public would be
exposed to would be the same if it were two separate meetings or one meeting. The terms
of the manageability of the joint public hearing would be fairly straightforward.
Dinkin states he views the ZBA as the controlling authority here. It is certainly the
controlling authority on the substance. His concern, since this happens at Site Plan
Reviews anyway, is that the dirty little details would get lost in the substance of the issue
and that, in fact, the Planning Board might not garner appropriate information to make the
decision. If the Planning Board does not garner appropriate information, it is the Planning
Board’s problem but it does make it more difficult. From the perspective of the public,
the substance of the matter is far more interesting than where the parking is.
Dinkin states it is clear that if the applicant cannot demonstrate hardship, he fails to get
under the bar for a variance. That is not to say that he may demonstrate hardship and still
fail to get under the bar and no one here is implying that is not the case. The ZBA would
be making a final decision. It is not unusual or impossible for a later permitting authority
to make a decision, which supercedes the approval of a prior permitting authority. In that
case, the applicant may choose to stop or may choose to return to the prior permitting
authority with a modification.
Alexander states if the Planning Board sticks just with the PRD piece of this, if there is a
Joint Public Hearing, the ZBA would only be hearing one piece of this, not the entire
project.
Dinkin states assuming that the hearing deliberation is complete in one night, the Board
would have to vote on the PRD portion while ZBA votes on the variance portion. The
Boards would then have to exchange decisions. The ordinance requires that a written
report be provided.
Grimes states without the granting of a variance, the Planning Board is making a Site Plan
Review on a non-project.
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March 18, 2003
Page 8
Grimes:
Motion that the Zoning Board of Appeals forward an application for a
Planned Residential Development to the Planning Board for Site Plan
Review on only the PRD but that the Planning Board will do the Site Plan
Review on the IR section when and if the Zoning Board of Appeals grants
a variance on the IR section. There is no second.
Grimes states she thinks the Planning Board is required to do Site Plan Review on the
PRD but the Planning Board should wait for the Site Plan Review on the IR section until
the Zoning Board of Appeals grants a variance. Right now without a variance, there is not
a project.
Thomson:
Motion to conduct a joint public hearing between the Planning Board and
the Zoning Board of Appeal to hear the entire project, reserving the right
to sever and allow the Boards to continue the public hearings at their own
regular meetings. Seconded by McGlynn. Motion carries (6-2). Grimes
and Hamm opposed.
Dinkin states that the ZBA should be the controlling authority. There are four votes in
order at this meeting. The purpose of the meeting will be to get all of the issues on the
table. At least two of the hearings will close at different times. This does not mean that
the ZBA cannot vote at a hearing where the Planning Board is not in attendance. Grimes
states she is opposed to this process. Zambernardi agrees to contact members to set a
date
for the public hearing.
One-Stop Market – Site Plan Review Application #74-03 – Set Public Hearing – 174
Rantoul Street – Renovate existing 1,535 sq. ft. convenience market and a 2,002 sq.
ft. addition – Proposed convenience/liquor store – Jaspal Gill
Jaspal Gill is seeking to renovate an existing 1,535 s.f. single-story convenience market
and add 2,002 s.f. single-story addition to the existing structure. The proposed gross
building area is 3,537 s.f. and the proposed use is a combination convenience and liquor
store.
Thomson:
Motion to set a public hearing for Site Plan Review Application #74-03:
One Stop Market – 174 Rantoul Street for the next regularly scheduled
meeting date, April 15, 2003 at 8:00 p.m., seconded by Flannery. All
members are in favor. Motion carries.
Sign Ordinance – Proposed Zoning Amendment – Recommendation to City Council
Hurlburt states there was a Joint Public Hearing with the City Council on March 3, 2003
to discuss the Sign Ordinance. She states that it has found over time that the Sign
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March 18, 2003
Page 9
Ordinance is unclear and lacks guidance. The next step in the process is for the Board to
make a recommendation on the Sign Ordinance to City Council.
Thomson states that this is an interim measure, the Committee has spent a fair amount of
time on this and he recommends that the Planning Board recommend adoption of the
proposed zoning amendment to City Council.
Thomson:
Motion to recommend adoption of the proposed Zoning Amendment of the
Sign Ordinance to City Council, seconded by Dunn. All members are in
favor. Motion carries.
Approval of Minutes:
Thomson: Motion to accept the minutes of the Regular Meeting dated February 20,
2003 and the Special Meeting dated March 3, 2003 as written, seconded by
Dunn. All members are in favor. Motion carries.
Inclusionary Housing Amendment
Hurlburt states she and the Planning Staff have been going over the Master Plan. A great
deal of the work can be done through the Comprehensive Rezoning but there are some
recommendations that the Planning Department thinks that they can complete in-house.
For example, the Conservation Subdivision, Standards for Watershed and Groundwater
Protection Ordinances and Chapter 40B Guidelines. Recently, Beverly is one of the few
communities that exceed the 10% affordable housing requirement under Chapter 40B;
although with the development that has been occurring over the past couple of years, the
City could be on the fringe. The Planning Department has researched several communities
to find out what they have in their community for Inclusionary Zoning. Peabody, Ipswich,
Cambridge, Brookline and Barnstable County have Inclusionary Zoning on their books.
The City could lose development that could be slated for affordable housing throughout
the City. The Planning Department thought it would be useful to try to undertake the
Zoning Amendment.
Hurlburt states the purpose of the discussion this evening is just to gauge the Planning
Board members right now to see if they are of the same opinion. Does the Planning Board
think it would be worthwhile to address Inclusionary Zoning before getting to the
Comprehensive Rezoning.
Dinkin states he could not agree more that Inclusionary Zoning language has more
urgency than the other zoning amendments that would be considered as a response to the
Master Plan. The City has not approved affordable housing in the past couple of years.
Dinkin states he does not have a great fear of 40B but he thinks it is always wiser for a
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March 18, 2003
Page 10
community to be proactive in the development of affordable housing than it is to wait and
have to react to it.
Dinkin recommends that a draft amendment be included on the agenda for the next
Planning Board meeting.
Hurlburt states she will work on an Inclusionary Zoning Draft.
Adjournment
Flannery:
Motion to adjourn, seconded by Dunn, all members are in favor. Motion
carries.
The meeting is adjourned.