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2008-09-23 CITY OF BEVERLY MASSACHUSETTS PUBLIC MEETING MINUTES BOARD OR COMMISSION: SUBCOMMITTEE: DATE: LOCATION: Planning Board, Regular Meeting MEMBERS PRESENT: September 23,2008 Beverly Public Library, Sohier Room, 32 Essex Street Chairperson Richard Dinkin, Vice Chairperson John Thomson, Joanne Dunn, Ellen Flannery, Charles Harris, Ellen Hutchinson, David Mack, Leo Panunzio, Stephanie Williams MEMBERS ABSENT: OTHERS PRESENT: Assistant Planning Director Leah Zambernardi, ADA Coordinator Art Daignault Andrea Bray RECORDER: Chairperson Dinkin calls the meeting to order. 1. Subdivision Approval Not Reauired (SANR) - 510 Cabot Street. J. Levv and N. Levv Attorney Mark Glovsky states that this is a relatively simple ANR plan, a re-division of a plan from 1987, which conveys an interior portion ofland. He provides the new dimensions for each lot. Thomson: abstains. Motion to endorse the plan, seconded by Panunzio. Passes 8-0. The Chair 2. Cleveland Road Subdivision #1 - Expiration of Construction Completion Date and Form G Covenant (September 30. 2008) - William Beard Zambernardi reads a letter from the Beards requesting another extension, and a letter from the Assistant City Engineer Eric Barber. Thomson: Motion to grant an extension until June 30, 2009 subject to the completion of the items listed in the letter from the Assistant City Engineer, seconded by Mack. Passes 8-0. The Chair abstains. 3. Update on Site Plan Review #78-04 - Removal of Stairwav and Construction of ADA Compliant Ramp - CVS at North Beverlv Plaza - S.R. Weiner & Associates Zambernardi states that the original site plan had a stairway leading from the Dodge Street sidewalk into the CVS parking lot, which was found to be noncompliant with ADA Planning Board September 23,2008 Page 2 of 11 requirements. She adds that the stairway has been covered because it was in violation of accessibility laws and the applicant is exploring a way to make an accessible ramp into the Plaza. She states that at this time they are seeking a reasonable estimate and need additional time to work out their final approach. Beverly ADA Coordinator Arthur Daignault states that he has no problem with a continuance but not too much longer because this has been going on for 4 years. Dinkin asks if they are currently out of compliance with their site plan. He directs that this case be referred to the building inspector for enforcement. Daignault adds that he is the one that filed a complaint with the Architectural Access Board and the developer's hands were tied, so the developer came back to the Planning Board as a last resort. Thomson: Motion to refer this matter to the building inspector for enforcement, seconded by Mack. Passes 8-0. The Chair abstains. 4. Thompson Farm Subdivision - Letter from Gary Newman re2ardin2 proiect completion Zambernardi reads the letter from Gary Newman into the record, requesting that the Board enforce the completion of the sidewalks within the subdivision. ADA Coordinator Arthur Daignault says that where the property is still under control by the developer there is no law that he can pinpoint in this case, but as a person with a disability he can empathize with Mr. Newman's father not being able to get out of his house and live a full and adequate life. He adds that it bothers him that there is not adequate plowing, and it has been 2 years and more should be done to give the residents what they were promised. Attorney Tom Alexander, representing the Developer, Tom Carnevale, presents a letter stating that the street was sanded and salted on 7 different occasions, and plowed on 8 different occasions during the past winter. He explains that there is currently another house under construction on this street and it has been the practice of this Board to allow the developer to complete the road and sidewalks after all of the heavy construction has been completed. He presents pictures of the street and vacant lot, and states that it is a short dead-end way. He states that there are other developments in Beverly that are also stalled and it will take longer to sell these houses in the current real estate market. Thomson states that he understands the point about the roadway but not the sidewalks. Alexander states that the heavy equipment compresses the sidewalks and ruins them. He reminds the Board that the completion date has been extended until June 1, 2009. There Planning Board September 23,2008 Page 3 of 11 is one house that is near completion and there is one house still to be built. He adds that it is his client's wish to have the project totally finished by next Spring. Dinkin tables the matter until later in the meeting. Thomson: Motion to recess for public hearing, seconded by Flannery. Passes 8-0. The Chair abstains. Dinkin reopens the meeting on Thompson Farm. Dinkin asks how much work has been completed since the last extension. Alexander states that he doesn't know but the applicant purchased the property after the approval and then sought the extension. He adds that the other two neighbors wrote a letter stating that the upkeep has been fine, and there is a bit of a clash between Mr. Carnevale and this person who wrote the negative letter. Dinkin states that he will not be inclined to grant another extension. Alexander states that he will deliver that comment to his client. Harris asks if there is any accountability for the construction worker that destroys the sidewalk. Alexander states that there is some but there must be witnesses or some way to prove who did the damage. Williams asks where the final lot is. Alexander states that it is about three-quarters of the way down on the street. Thomson states that he is not inclined to grant a further extension to this and the applicant has a choice to finish the sidewalk now or risk liability if there is an incident during the winter. He confirms that the board need not take any action tonight. 5. Public Hearin2 - Special Permit Application #120-08 - Create One Pork-Chop Shaped Lot - 16-18 Bav View Avenue - Elmtop Realtv Trust Zambernardi reads the legal public hearing notice. Dinkin recesses the hearing until 8:05 PM. Planning Board September 23,2008 Page 4 of 11 Dinkin calls the meeting back to order. Attorney Marshall Handly, representing the applicants, states that this proposal comes forward as a response to neighborhood criticism of the subdivision project currently under appeal in court, and the project will replace an older home with two structures. He says that the two lots are larger than all of the lots on Lawnbank Road and equal to the size of the lots on Bay View Avenue. He says that two abutters are here to speak in support of the project and the remaining abutter is the U.S. Government. He reviews all of the criteria for approval of a pork chop lot and explains each item as it pertains to this property. He requests that the board approve this application. One key point that Handly makes involves his interpretation of Zoning Ordinance Section 29-5.I.l.e, which states that the pork chop lot may be granted if "there are no valid objections from abutting property owners based on demonstrable fact." He describes his interpretation of this section to mean that any comments from non-abutters may not be considered by the Board. Thomson asks to see the lot line plan and Handly shows the plan and outlines the pork chop lot. He clarifies that one lot is a pork chop lot and the other is conforming. Handley states that the existing home was built with a variance with a second dwelling unit, and was conditioned upon it not being rented. Williams asks about the affidavit from Peter Flynn. Handly states that he lived there for approximately one year. Harris asks how many total abutters there are. Handly states that there are 3 abutters. Dinkin clarifies that this is a settlement plan. Handly states that it is and he is here tonight to settle this complaint. Williams asks Handly if he believes that only the abutters have the right to comment tonight. Handly states that any party may appeal, but parties of interest do not have the right to object during this hearing. Thomson asks for clarification on this point, asking Handly if he thinks that the Board can only take comments from the abutters. Planning Board September 23,2008 Page 5 of 11 Handly states that the abutters are the only parties that can be considered in making this determination. The Board and Handly discuss this point at length. Dinkin asks for clarifying question from the public. Anna Green of 4 Lawnbank Road asks about his position with the land on the ocean behind the property. She asks who the abutter is there. Handly states that the abutter is the Commonwealth of Massachusetts and the low watermark is the base of a cliff. Green asks if he believes that there are no abutters on that side. Joanne Avallon of 17 Boyles Street asks for clarification on Handly's opinion that only abutters can object to this project, but any residents can appeal this decision. George Steris of 4 Lawnbank Road asks if the tenants are paying rent. Hubbard states that one person is paying rent. He explains that he wasn't aware of the variance until today, and in terms of use it has been a two-family. John Bell of37 Ober Street asks if the house is legally registered with the city as a two- family house. Hubbard states it is a two-family house according to the assessment records. Anna Green of 4 Lawnbank Road asks Handly to confirm that the house has always been taxed as a two-family. Handly states that it has been taxed as a two-family and shows her the assessment records. Thomson asks if this is the identical property that was subject to the variance. Handly states that one house has been sold off. Thomson states that if the house lot was sold that was part of the earlier case it is impossible for that earlier case to be carried out. Handly disagrees. Thomson states that he needs to see that earlier plan to see how it relates today. Planning Board September 23,2008 Page 6 of 11 Rita Terenzi of28 Rear Ober Street, asks when this house was made into a two-family. She cites the original building permit of 1970 for a single-family house. Handly clarifies that there are two dwelling units and the second tenant does not pay rent. Dinkin recesses this hearing until 9: 15 PM. Dinkin calls the hearing back to order. Dinkin asks for comments in support of the project. Kai Hollesen of 107 Corning Street reads a statement in favor of the project. Ella Lutsi of 14 Bay View Avenue speaks in support of the project. Leslie Hope of 45 Corning Street speaks in support of the project. Tommy Thompson of 18 Bay View Avenue speaks in support of the project and states that he put his support in writing. Matthew Goldstein of23 Jewitt Road speaks in favor of this project. Phil Chait of 5 Elmtop Lane speaks in favor of this project. Dinkin asks for comments in opposition of the project. Attorney Tom Harrington of Watertown Massachusetts, representing Friends of Hospital Point, addresses two issues of a procedural nature: 1. He disagrees with Handly's statement that this project does not add any density to the neighborhood. He presents the variance to the board, and an affidavit from Katherine Bacon stating that this was never rented and used only for domestic employees. He adds that this is an extra unit and a bailout because the applicant originally thought they would build a bigger development on this property. 2. He disagrees with the point made by Handly about the issue of abutter vs. person of interest, stating that Handly is trying to tell this Board that they can hear only opinions of abutters. He asserts that this thinking is entirely false, and clarifies that a person of interest includes anyone whose interest can be affected by this application. Harrington then addresses two points of interest: Planning Board September 23,2008 Page 7 of 11 1. 16 Bay View Avenue burned down in 1969 and the fire department could not move the trucks down the street, and there is still insufficient water pressure on this street. 2. One of the main reasons this board rejected the original subdivision proposal was because it was too far away from the cross street, and that situation still exists today. It is still too difficult to get emergency equipment in from the cross street. Harrington goes on to speak to each of the 5 points of consideration, and then urges the board to deny the application. City Councilor Kevin Hobin of 6 Gardiner Street speaks in opposition to this project, and urges the board to consider the effects that this development will have on the neighborhood. He stresses the importance of preserving an old established neighborhood such as this. He emphasizes how vitally important these residents are to the city. Michael Harrington of 7 Bay View Avenue explains that the root problem here is that the zoning in the cove needs to be adjusted. He states that this lot, if approved, will be the only property on the street that does not meet the 100-foot frontage requirement. He adds that the Hubbards purchased the lot knowing that it was approved for only 2 houses and now they wish to change that. Councilor Pat Grimes of26 Old Town Road states that there are some real concerns in this and urges the Board to think carefully about this. Thomas Shirley of 52 Ober Street requests that the Board not consider that there is pending litigation with this applicant while making a determination on this matter. He warns that the applicant might use this pending litigation to bully the City into approving this application. Zambernardi reads the following letters into the record: . Dated Sep 13 2008 from John and Ella Lutsi of 14 Bay View Avenue in favor of the project. . Dated September 15, 2008 from Thomas W. Thomson in favor of the project. . Dated July 14,2008 from Anna T. Green, 4 Lawnbank Road in opposition of the project. . Dated July 11,2008, from David Vagos in opposition of the project . Dated July 15,2008, from City Council President Timothy P. Flaherty . Dated July 7,2008, from William T. Burke, Director of Public Health . Dated September 16, 2008, from Amy R. Maxner, Environmental Planner . Dated September 22,2008, from Frank Killilea, Director of Engineering . July 1, 2008, from William Fiore, Lieutenant, Beverly Fire Prevention Planning Board September 23,2008 Page 8 of 11 . June 27, 2008, from Sgt. Joseph Shairs, Traffic Sergeant/Safety Officer, Beverly Police Dept. Handly responds to some of the comments. He states that the Friends of Hospital Point is an undisclosed number of people, none of who are abutters or abutters to abutters. He adds that Michael Harrington complained but offered no specific facts, and that Michael Harrington does not like the Hubbards. He cites the case ofDow vs. Dover, which states that the personality of the applicant is not a relevant consideration for any application. He maintains that Harrington does not have standing because he is not an abutter or an abutter to an abutter. He asks the Board to approve this application. Attorney Tom Harrington, representing the Friends of Hospital Point asks for members of his group to stand. About 20-30 people stand and Harrington points to these people and calls them persons of interest. He reminds Handly that his interpretation of this ordinance cannot limit the Massachusetts Zoning Act. Handly states that parties in interest are defined by statue very specifically. He names the parties in interest; all of them are direct abutters. Dinkin closes the public hearing. 6. Public Hearin2 - ReQuest for Waiver of Fronta2e and Definitive Subdivision Plan Approval- 22 Haskell Street and 2 Rezza Road. f/k/a 24 Haskell Street- Estate of Robert Campbell and David Cicchetti Zambernardi reads the legal pubic hearing notice. Attorney Tom Alexander states that this application involves two neighbors whose properties have cliffs. He explains that in 1997 they obtained a variance so that some of the lot lines could be swapped to conform to the topography, and they now realize that they need further approvals to accomplish this. He describes the new lot lines. He states that lot C will not have the required frontage. Zambernardi reads the following letters: . Dated September 222008, from Frank Killilea, Director of Engineering . Dated September 11, 2008, from William Fiore, Lieutenant, Beverly Fire Prevention . Dated September 9, 2008 from Joseph Shairs, Traffic/Safety Officer, Police Dept. . Dated September 8,2008, from William T. Burke, Director of Public Health . Dated September 16, 2008, from Amy R. Maxner, Environmental Planner Dinkin asks for clarifying question ore comments. Planning Board September 23,2008 Page 9 of 11 Thomson questions why this is referred to as a subdivision plan if no new roads have been created. Alexander states that a recent court ruling states that they must have a frontage waiver from the Planning Board. Zambernardi states that this complies with the subdivision requirements and meets the waiver of frontage requirements. Dinkin closes the public hearing. Dinkin reconvenes the regular meeting. 7. Discussion/Decision: Special Permit Application #120-08 -16-18 Bay View Avenue - Elmtop Realty Trust Dinkin begins with the things that he doesn't find persuasive or entirely relevant: . The prior use (I-family, 2-family) is not relevant, rather what uses are legal and can be supported on the property today is relevant. . It is his view that in a public hearing, which is an information gathering process not an adversarial procedure, the testimony of all members of the public that make the effort to attend is relevant. Thomson reviews the list of items addressed: . Regarding Handly's interpretation of the ordinance regarding abutters: We cannot approve this application unless all of the objectives have been met. It doesn't mean that you cannot consider other peoples objections. . Regarding the proposed uses, the street is adequate except that it is 500-ft long. . As to the requirement that there is no undue traffic or unreasonable hazard which will result, he sees that there is a hazard due to the low water pressure and the fact that fire trucks do not have an adequate turn-around. He cites the comments of concern last time about the lack of a turn-around and states that this issue remains true. . There is no factual evidence that this project will adversely affect property values. . Although this project is the appropriate use, they should not grant a special permit for a pork-chop. A pork chop lot is for someone caught in a difficult position. The Board cannot bend the rules to allow a pork chop unless there is a reason to do it. All of the conditions have not been met. And even if they were the Board should not use the pork chop ordinance in this case. Williams states that her main thought relates to criterion A, the proposed use. She explains that it would be an oversimplification to say that because two single-family Planning Board September 23,2008 Page 10 of II homes will be built there the proposed use is consistent with the previously approved use, a single-family home with an additional dwelling unit to be used for domestic help. She expresses some concern that the approval of this application will result in a more densely used area. She says that she has reasonable concern about the length of the dead end street. She states that the ordinance does not limit the Board to consider objections from only abutters. Mack agrees with Thomson and Williams on the issue with the abutters. As to the issue of the hazard pertaining the water pressure and the dead-end street, Mack explains that the Board should give substantial deference to the public officials who know about this and state that the hazards are not unreasonable. He disagrees with Williams on the use because he feels that the use is consistent with that use which is currently approved. He disagrees with Thomson's view that a special permit can be granted only in extraordinary circumstances. Thomson states that given all of the issues surrounding this application discussed tonight it would not be arbitrary for the Board to deny this application, because he feels that it does not merit special permit pork chop relief. Dinkin explains to the public that a special permit requires super majority (6 votes). Thomson: Motion to deny the special permit, seconded by Dunn. Passes 6-2. The Chair abstains. Hutchinson and Mack vote in opposition. 8. Discussion/Decision: Waiver of Fronta2e and Definitive Subdivision Plan Approval- 22 Haskell Street and 2 Rezza Road - Estate of Robert Campbell and David Cicchetti Thomson states that this has gone through the Zoning Board and the main issue for the Planning Board is to confirm that there would be no adverse effect in granting this Waiver. Thomson: Motion to grant this application, seconded by Mack. Passes 8-0. The Chair abstains. 9. Modification #2 to Site Plan Review #84-04 - Plannin2 Board Review and Approval of Pedestrian Safety Plan - West Parkin2 Gara2e - Cummin2s Center - Beverly Commerce Park. LLP Steve Drohosky, General Manager of the Cummings Center reviews the application process for the restaurant and states that the site plan was approved by the Board and he is seeking approval for the pedestrian safety plan. Planning Board September 23,2008 Page 11 of 11 Thomson confirms that this involves putting in street bumps, cross walks and a couple of sIgns. Thomson: Motion to approve the modification, seconded by Mack. Passes 8-0. The Chair abstains. 10. City Council Order #170 - ReQuest by City Council for Plannin2 Board Review and Recommendation of Zonin2 Ordinance Section 29-5.1. "Pork Chop Shaped Lots" Dinkin suggests putting this item on the agenda for the next meeting. Zambernardi states that a chronological history of the pork chop lot ordinance is in appendix E. Thomson states that it is basically a frontage waiver. Panunzio states that pork chop lots were used for relatives and this practice has changed over the years because of the value of lots. He says that Bay View Avenue is not a place for a pork-chop lot. Dinkin states that this is a longer discussion than he wants to have now. City Councilor Kevin Hobin states that this hasn't been looked at in over 25 years. He adds that in today' s environment you will see more people trying to use this. He asks the Board to look at it and add/delete/review the ordinance. The matter will be placed on the agenda for the October 21 meeting. 11. Schedule Public Hearin2 - 14 Cole Street Flaherty: Motion to schedule a public hearing for October 21, 2008 at 8:00 pm seconded by Mack. Passes 8-0. 12. Approval of Minutes - Special Meetin2 of July 8. 2008 and Re2ular Meetin2 of July 15.2008 Dinkin tables this issue until the next meeting. Mack: Motion to adjourn, seconded by Flannery. Passes 9-0. The meeting is adjourned at 10:50 pm.