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2005-03-03 Special City of Beverly, Massachusetts Public Meeting Minutes BOARD: Planning Board Special Meeting SUBCOMMITTEE: DATE: March 3, 2005 PLACE: 3rd Floor Council Chambers, Beverly City Hall BOARD MEMBERS PRESENT: Chairperson, Richard Dinkin; Vice Chairman, John Thomson; Ellen Flannery; Eve Geller-Duffy; Don Walter; Jason Silva OTHERS PRESENT: Tina Cassidy; Leah Zambernardi RECORDER: Jeannine Dion (by tape) The meeting is called to order. Dinkin states that the main purpose of this meeting is to continue the public hearing on the Open Space Residential Design (OSRD) amendment to the Zoning Ordinance. He states there are two business items he would like to have the Board address before it moves into OSRD. Proposed Zoning Amendment #36 – Robert Goldberg – change 29 Rantoul Street and 8 School Street from RHD to CC – Recommend Joint Public Hearing with City Council Dinkin states the proposal submitted by the property owner would be to change 29 Rantoul Street and 8 School Street, which abut the Edwards School, from RHD to CC. The action before the board is to refer this matter to the City Council to set a public hearing. th Cassidy states the recommendation will go to the Council on their March 7 meeting. With advertising requirements of two weeks, it is likely the Council would have the th public hearing on April 4. Thomson moves to recommend a Joint Public Hearing for proposed Zoning Amendment #36, seconded by Flannery. All members are in favor. Motion carries. Request to Film and Air Planning Board Regular Meetings on BevCam Dinkin reads from a letter from Rob McCauseland of BevCam which states in part “With the Planning Board’s permission, I would like to air as an experiment, live and repeat on videotape, the next available meeting …" He would tape one meeting for sure and subsequent tapings would depend on the ability to find underwriters. Beverly Planning Board (Special Meeting) - Minutes March 3, 2005 Page 2 Dinkin states he explained to Mr. McCauseland that while he has no objection in principle, he would not permit broadcast of the meetings without the consent of the board. Silva states he has no objections. The board has no objections to the taping of Planning Board meetings. Dinkin asks that the tapes be made available for public record. Thomson moves to recess and reconvene for a scheduled public hearing, seconded by Walter. All members are in favor. Motion carries. Public Hearing (continued): Open Space Residential Design Ordinance (OSRD) Thomson moves to waive the reading of the legal notice, seconded by Geller-Duffy. All members are in favor. Motion carries. Cassidy states City Council’s hearing on this topic was closed in January and that there is a 90 day timeframe that runs from the end of that hearing, by which the Council must act. rd Cassidy states by April 3, the City Council will have to vote yes or no or it will run over the timeline and would need to be resubmitted and reheard. Thomson states he understands that the board has the ability to recommend the Ordinance be accepted or not, but also to recommend it with modifications. Dinkin suggests that that the board does not propose specific language and that the Council write the specific language. Thomson asks if, following a vote from the Planning Board, if he and Scott Houseman could assist the City Council in writing out what was voted on. Dinkin does not agree with Thomson. He states if the City Council requests Houseman and Thomson to do that, it would be fine. He would not want to see a draft that differs from the draft that the board recommends without a subsequent vote from the Planning Board on the specific language. Dinkin asks if members of the public have comments: Mary Rodrick, 14 Peabody Avenue, reads a letter from Pam Kampersal, who is unable to attend the meeting. Joan Murphy, 36 Longmeadow Road, expresses concern about decreasing the buffer zone. Rosemary Maglio, 30 Pleasant Street, expresses concern about the following: Beverly Planning Board (Special Meeting) - Minutes March 3, 2005 Page 3 ?? Density bonuses; ?? Should deduct wetlands and non-developable land before determining the number of possible lots on a site; ?? Questions the definition of OSRD requirements. She believes you must have a large tract of land in order to qualify for OSRD and it should not be allowed just anywhere in the City; ?? Public input is minimal; ?? Too much power for the Planning Board; ?? Suggests leaving the land the way it is (prohibit blasting). ?? Reduced buffers. ?? Public is not mentioned in site visits. ?? No density bonuses should be offered. Thomson states the Open Space and Recreation Committee, who is in charge of protecting open space, unanimously endorses the OSRD. Thomson clarifies the density bonuses are not incentives for the developer to build where he could not otherwise build. It is a reward for dedicating more space, than is otherwise required, to open space. It is currently a policy decision and a debating point. Hope Benne, 44 Hillcrest Street, asks where the 840 available acres are, what type of land it is and the consequences of building on this land. Dinkin states that information is available to anyone who looks at the maps available in the Planning Department. Benne asks what the definition of open space is. Thomson responds that the definition is on page 10 of the proposed ordinance. Benne states a definition of open space written by real estate lawyers may not be what the average person perceives as open space. Dinkin states it is not a crime to be a real estate lawyer and you could assume that the people most qualified to write real estate law, are the people who have spent a career in real estate law. Thomson states he takes personal offense with Benne’s comments and would like her to spend her time dealing with the specifics of the ordinance. Dinkin states what is in order this evening is a discussion of the specifics of the proposal that is in front of the board. Ward 1 City Councilor, Maureen Troubetaris, states the ordinance needs a little tweaking here and there but all in all the ordinance will help preserve open space. Maglio reads from the Zoning Ordinance to help clarify Benne's points. Beverly Planning Board (Special Meeting) - Minutes March 3, 2005 Page 4 Rodrick expresses concern that there are too many “loopholes” for developers in the ordinance. She is concerned about the relaxation of subdivision standards and zoning. She recalls that most residents don't want density. She states there is too little and too late opportunity for public input. She refers to the Watershed Protection Overlay District and the Watershed Protection Act. She states there is little provision for affordable housing. Regarding applicability, she believes the Ordinance should not apply to districts with less than 2 acre lots. These lots are small and no one is going to want to take over the small amounts of open space. She states that abutters should at least be notified in the pre-application stage even if they can't speak. She states other Boards like the Conservation Commission should be involved. She asks if the site plan includes the open space lot. Thomson responds that it does. She asks if it is possible that condos could be placed in a single family zone. Thomson states that what is allowed by the underlying zoning would be allowed, so no, in a single family zone, multi-family dwellings would not be permitted. Rodrick states her concern over a landscape architect's qualifications for being a key part of the development team because they may not be knowledgeable in areas that have vernal pools and other wetland resources. She states there are too many unnecessary loopholes and that she's seen lawyers with applications to the Board find too many loopholes in the laws. Thomson states there is language in the Ordinance that is intentionally vague. He states the Planning Board has to be given flexibility to look at individual sites and to come up with the best way to develop that particular site. He states there are often trade-offs. He states that he and Scott Houseman were also concerned over takings issues. Rodrick makes more comments including: ?? the open space needs to be perpetually placed as open space ?? no site plan approval should be allowed where water resources are involved ?? the Open Space and Recreation Committee and the Conservation Commission should have a say in how the open space is handled ?? she is concerned about having no public hearing for minor changes ?? there should be green building provisions in the Ordinance Tina Cassidy, the Planning Director has the following comments: ?? For an optional ordinance, it will need significant density bonuses, in order to be attractive to a developer. ?? She is concerned that the bonuses are very conservative. ?? The two-acre threshold is appropriate. ?? Buffer areas – She reminds members of the public that at the moment, the largest setback in current residential zoning is 25 feet. The proposal would double or quadruple the current setback. ?? The Open Space requirement is fair. ?? The proposed percentage of non-developable land is reasonable. ?? She has concerns about the provision for a set aside of $10,000 per lot for or unit for maintenance. There may very well be open space that requires very little Beverly Planning Board (Special Meeting) - Minutes March 3, 2005 Page 5 maintenance if left in its natural state. It is conceivable that $10,000 per lot or unit would be an extraordinary amount of money and would probably never be used. It would also require a significant amount of bookkeeping. ?? Recommends that there should be a statement that the Subdivision Rules and Regulations of the Planning Board and the dimensional requirements of the Zoning Ordinance can be waived. ?? Concern about the definition of tract Cassidy commends the dozens of people who have provided their comments. She states this Ordinance is light years in improvement to the current subdivision rules and regulations. She states we didn't know as much then including the extent to which such regulations would effect the natural environment. She states that the City needs to be able to change its rules and regulations to have the minimum impact on the environment and she believes the ordinance will do that. Renee Mary, 274 Hale Street provides the following comments: ?? Concern about impacts on wetlands. ?? The draft is unacceptable. ?? Concern about lack of public input in the process. ?? The language should be simplified. Dinkin states you try to draw a balance when drafting legislation. You want the maximum amount of protection for the public. The public hearing is closed. Discussion/Decision: Open Space Residential Design Ordinance (OSRD) – Recommendation to City Council Dinkin thanks John Thomson and Scott Houseman for the hours and hours of work that they put into this proposed ordinance. Thomson states a minimum of 2 acres was recommended by the City Planner and members of the Open Space Committee. Dinkin states he does not agree. One of the problems that he has with this is that he thinks there is a very real prospect of making redevelopment in the poor urban areas of the City almost impossible. He uses an example of the house in which he grew up. If the current owner decided to gut the property and put four units in, in order to comply with the OSRD, there is a garage on the property that would have to come down. The owner might even have to acquire more property to redevelop. Thomson states he does not object to not having this applicable to certain districts. That is a policy decision that the board has to make. Beverly Planning Board (Special Meeting) - Minutes March 3, 2005 Page 6 Dinkin states he can envision situations in which individual property owners wishing to redevelop property in the poorer parts of the City, would be forced to inappropriately seek a zoning change to CC in order to get off the hook of OSRD. Thomson states he would prefer to go towards the two acre and try to define the zoning districts. Cassidy asks if Thomson is saying that he is recommending 2 acres in any residential zoning district, regardless which zoning district it is. Thomson replies that is what he is recommending. There is discussion about excluding the R6, RMD and RHD zoning districts from OSRD. There is discussion about using the two acre threshold or exclusion of specific zoning districts from OSRD. Dinkin summarizes that the board is in favor of excluding the “core city” from OSRD and left the other two thresholds intact: a lot of 2 acres or 4 new units of housing. Dinkin asks if Thomson can assure him that someone coming in with an ANR, because the applicant would then be required to go through a fairly onerous process would not have a basis for litigation. Thomson responds that an ANR is approval of a lot creates a legal lot. The site plan approval determines what you can do on the lot. Thomson reviews the list of comments made during the OSRD public hearing process: ?? Undisturbed area: There were comments that this was confusing. Thomson recommends that the terms “open space” and “undisturbed” being defined the same. ?? Thomson states “open space” to him can be a recreational field, woodlands, mowed lawn, river, coast, unmowed field, bank, dune, wetland, etc. Walter asks who controls the open space and how do you tell people that land is open space but you can’t use it. Dinkin states there are three options for ownership and the possibilities will vary with ownership. If the ownership resides in the backyard model, it literally is someone’s backyard and is private property. If the ownership resides with a non-profit trust, there is no guarantee that the non-profit trust won’t go in and put a soccer field there, but it is unlikely. If the city owns it, there is probably the highest likelihood of someone putting a soccer field in at some point. Beverly Planning Board (Special Meeting) - Minutes March 3, 2005 Page 7 Cassidy states the uses of the open space would be shown up front in the plan that the Planning Board would approve. If someone was going to propose a soccer field, it would either be done up front as part of the public review process or down the road, it would require a trip to the board to determine if it is a major or minor modification. The applicant would be required to file a modification and another public hearing. Dinkin states he does not think part of this process ought to be regulating what homeowners do to prevent or encourage trespassing on their property. Walter states he would like assurances that there be some language stating that the 70% land put aside, will never ever be developed. Cassidy states there is a provision in draft that requires that “all open space, no matter to whom it is conveyed, whether it is a homeowner’s association, the city or a non-profit conservation group, shall be subject to a recorded Conservation Restriction. Such land shall be potentially kept in an open state and it shall be preserved exclusively for the purposes set forth herein." Thomson states deeding a property either to a conservation entity, city or a non-profit does not go with a Conservation Restriction. Those agencies are governed by law limiting their properties to be used for the purposes specified. So, there is no need for a Conservation Restriction in those two cases. Thomson states if the question is “Can a Conservation Restriction” change what it does with the property downstream, the answer is “yes” but only if it is within its purposes of the Conservation Restriction. You can’t abandon the property’s conservation land, you can just agree to a different conservation use than it might have started out as. For example, a forested area could change to an open field for recreational purposes. Walter states that would be a terrible thing to do. If you are trying to save open space, but to cut down forest to put up a ball field is wrong and going against the grain of what the OSRD is for. Dinkin asks if a piece of forested area died, you wouldn’t be able to go in and take the dead trees down and put in tennis courts? Walter responds that you should have to plant new trees. He states he sees ambiguities that bother him and expresses concern that what will be defined as nice open space be made abundantly clear that it is what it should stay and be. He wants to be sure that it is enforced. Thomson asks if Walter is recommending that “open space” irrespective of what agency holds it, will be subject to a Conservation Restriction in perpetuity and be used as open space. Walter agrees that is what he is recommending. Beverly Planning Board (Special Meeting) - Minutes March 3, 2005 Page 8 Thomson states the people we can’t trust for the future are the homeowners because they are going to act out of self-interest. The bodies that we can trust are the ones that we already entrust with preserving our resources: conservation entities like Greenbelt Association, Trustees of Reservations and the City's own Conservation Commission. Those bodies must be trusted to do what they are supposed to do and tying their hands in the future worries him a little bit. He realizes the discussion is about policy and he can see Walter’s point of view. Dinkin asks if Walter would object if the city put in a bath house on open space near a Great Estates in Beverly Farms. Walter responds he thinks that would take away from the open space. Dinkin state he does not want to tie the hands of future City officials to deal with the needs of their times and he thinks needs change. Thomson provides an overview of the major issues discussed: ?? Owners are encouraged to provide greater access to open space (ie. trails). The desire is for the applicant to choose the vehicle of open space and the board will ultimately decide which vehicle is the best. Thomson does not think you can tie the hands of the public bodies, in perpetuity, to not decide what is in the best interest of the public. ?? Thomson states there was a pretty uniform reaction not to tie density bonuses to affordable housing. There were a lot of different views from not providing any density bonuses, to not providing density bonuses if OSRD is mandatory, to leave it alone. Dinkin states that not only does he favor density bonuses for affordable housing but he favors density bonuses for affordable housing. However, for more reasons than he can enumerate, this is the wrong place to enshrine that into the Ordinance. ?? The percentage of tract required to be open space – The OSRC recommended to stick with 50%. ?? The percentage of undevelopable land that can be counted toward open space – The OSRC recommended to stick with the 25%. ?? The Open Space Fund – Thomson states he spoke with the Essex County Greenbelt to get a feel for what they do. When they are given a sizable tract, their funds range from between $10,000 and $20,000 as a requirement for somebody when they give a Conservation Restriction. Thomson recommends to give the board the flexibility to grade per development, to require a $10,000 to $20,000 Beverly Planning Board (Special Meeting) - Minutes March 3, 2005 Page 9 fund, based on both the size of the project and the degree with which the board thinks there is maintenance required. ?? Cassidy recommends explaining “maintenance” more clearly (i.e. not only the physical upkeep of the property). ?? The members discuss changing it to “up to $25,000” and leaving it up to the board to determine the amount of money to be held for maintenance. ?? Specify road dimension reductions – Thomson is open to being more explicit about this. ?? Dinkin states the board already has the authority to approve waivers and he does not see what it would accomplish to reiterate the fact that the board has the authority to waive road widths and layouts. ?? If other town departments make recommendations, Thomson states the board does not have the authority to waive those requirements (i.e. Fire Department, etc.). ?? Dinkin states he is not opposed to putting this in, however, it is somewhat redundant to put it in. ?? Thomson states there has been some mention about cutting the public out of the process. It is something he and Scott Houseman have tried very hard not to do. He understands the point that the pre-application part of the process is without a public hearing but there is still very much a public hearing in the latter part of the process. Developers are encouraged to meet with neighbors during the pre- application stage and the board will ask developers about those meetings when they come forth. He is not inclined to judge favorably for an applicant, in the pre- application stage, who has not bothered to talk to the neighbors. He suggests that the developer be required to notify abutters during the pre-application stage. ?? Dinkin states he thinks notification provides the public with what they genuinely need, which is a bright light on the process. ?? Definition of tract – Thomson states the rationale was to try to close a loop hole for developers, which is to focus on one part of the property and ignore the rest. When he defines tract, he would like the developer to bring in everything so that you can see the whole picture. ?? Dinkin states he is conflicted on this matter. OSRD - Mandatory versus Optional Thomson states the reason he is in favor of mandatory is because this will be unpalatable to developers because you are asking them to do something different from what they have done before and think differently. Some developers want to do the right thing but there Beverly Planning Board (Special Meeting) - Minutes March 3, 2005 Page 10 are others who want to do the same old thing and churn out the houses. He believes you have to make OSRD mandatory or it will not be opted for by the developers. Dinkin states he is concerned that we are saying “We have been absolutely wrong for the past 75 years but now we are smart … and now what we require is absolutely correct”. He states this is a little flippant. However, he sees this as a real opportunity to build some flexibility into zoning. It is flexibility that drives creativity. He states developers will do what is most profitable. So if OSRD produces higher value and more easily marketable properties, then developers should flock to that. He states density is not the end and the mandatory nature of the ordinance will wind up having an adverse affect on housing affordability, which is at least as significant a problem in the Greater Boston area as open space. He does not favor a density bonus in a plan that is mandatory. Dinkin states he is willing to talk about incentives in an optional plan or even a plan that places a value to conventional subdivision, such as a Special Permit. He would be open to a process that made OSRD by right and Conventional by Special Permit. Dinkin states the bottom line is what I’m looking for is not a different state of doing things but increased flexibility that allows both the seller and the buyer to explore as many options as possible. He is in favor of providing incentives. Dinkin states the argument to make this mandatory begins at we are talking about 800 acres of distressed land (land that is challenging to build on) and the Great Estates in Beverly Farms. The real planning challenge in this community is not the 800 acres of distressed and challenged land. The real planning challenge is the areas that are today and will in the next generation become available for redevelopment. Silva states he is in support of making OSRD mandatory and supports more public involvement (public hearing during the pre-application stage). Thomson asks the Planning Board members who is in favor of the current scheme, mandatory with density bonuses. Geller-Duffy, Silva and Thomson are in favor. Thomson asks the Planning Board members who is in favor of mandatory without density bonuses. Walter, Flannery and Thomson are in favor. Walter states there is no need for density bonuses. Zambernardi asks whether the Board would support a mandatory Ordinance with density bonuses allowed only at the discretion of the Planning Board. Thomson asks the Planning Board members who is in favor of mandatory with discretionary bonuses. Walter, Flannery, Thomson, Silva and Geller-Duffy in favor. Dinkin oposed. Beverly Planning Board (Special Meeting) - Minutes March 3, 2005 Page 11 Thomson moves that the Planning Board submit the recommendations for the OSRD Ordinance to City Council with the following edits (discussed earlier this evening): That the Ordinance remain mandatory; 1. That the Ordinance shall not apply to the R-6, RHD, or RMD Zoning Districts (Section II.2); 2. That language be incorporated, which requires that during the Pre-Application Process (Section III.), abutters and abutters to abutters are notified of the pre- application review at least 7 days in advance of the meeting. This shall not be a public hearing. 3. That density bonuses (Section VII.) are allowed only at the discretion of the Planning Board; 4. That the descriptions for "Undisturbed Areas" [Section VI.3(b)(vii)] and "Open Space" (Section VIII.1) are combined; 5. That the language in Section VIII.2.(c) requiring that an applicant "post a cash bond to secure the maintenance of the open space in the initial amount of $10,000 per dwelling unit within the tract" be amended to require that, at the Planning Board's discretion, the applicant post a cash bond to secure maintenance or enforcement of the open space of up to $25,000 per project. 6. That language be incorporated, which clarifies that the Planning Board may allow reductions in road dimensions and grant other such waivers of the Planning Board's Subdivision Rules and Regulations, in its discretion. The motion is seconded by Geller-Duffy. Thomson, Geller-Duffy, Walter, Silva and Flannery vote in favor. Dinkin votes in opposition. The motion carries. Thomson thanks everyone for their patience in this process. Adjournment Walter moves to adjourn seconded by Silva. All members are in favor. Motion carries.