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2010-12-21CITY OF BEVERLY MASSACHUSETTS PUBLIC MEETING MINUTES BOARD OR COMMISSION: SUBCOMMITTEE: DATE: LOCATION: MEMBERS PRESENT: MEMBERS ABSENT: OTHERS PRESENT: RECORDER: Planning Board Tuesday, December 21, 2010 Beverly City Hall, Council Chamber, Third Floor Chairman Richard Dinkin, Vice Chairman John Thomson, Joanne Dunn, Ellen Flannery, Charles Harris, Ellen Hutchinson, David Mack, James Matz None Assistant Planning Director, Leah Zambernardi Diana Ribreau Chairman Dinkin called the meeting to order at 7:30 p.m. Subdivision approval Not Required Plans (SANR's) Zambernardi stated that one SANR was received though it is for 1 Lakeshore Avenue, which will be considered under item 3. of the agenda. Informal Discussion: Purchase and Use of Non - Aviation Use Airport Property — Cicoria Tree Service/Mark Cicoria John Morin, Engineer, from Neve -Morin Group spoke on behalf of Mark Cicoria to discuss preliminary plans for a proposal to build a 125 ft. by 50 ft. industrial building primarily to accommodate Cicoria Tree Service. The remaining space would be available for contractor storage and office space for other contractor service providers. The property is located at the corner of L.P. Henderson Road and Sam Fonzo Drive in which there is frontage on both roads. However, the frontage on L.P. Henderson Road is affected by wetlands and the frontage along Sam Fonzo Drive has a significant slope. Because of this, the parcel of land at the airport was offered with a 12 -foot wide nonexclusive right -of -way easement that could provide an alternate means of physical access from L.P. Henderson Road. The proposed right -of -way easement was discussed with the Beverly Fire Department and Beverly Airport and the easement was found acceptable to both parties and within the RFP. Morin explained that there is viable access from Sam Fonzo Drive however it is not ideal for vehicles to enter and exit with the significant slope that is there. In addition, the applicant and engineer had concerns with enough space for emergency access. The right -of -way easement would allow a 12ft. wide access road with a total of 24 ft. emergency access at all times. The development of the parcel requires a SANR plan to separate the 3 -acre parcel from Beverly Airport, a Special Permit for development in a Watershed Protection Overlay District, Site Plan Review and Notice of Intent with the Conservation Commission. Proposed plans and drawings have been sent to Thomas Knowlton of the Beverly /Salem Water Supply Board. Morin and Cicoria are requesting feedback from the Beverly Planning Board regarding frontage, access, and overall use before formally submitting an application. Public Meeting Minutes — Planning Board December 21, 2010 Page 2 of 11 Thomson asked if the right -of -way access road would only be accessed by the proposed parcel in question. Morin replied yes. Thomson wanted to be sure that gaining access to the proposed site through Sam Fonzo Drive was not legally prohibited in any way. Morin confirmed that there was none. Harris asked if they have considered the effect of storing wood chips adjacent to the wetlands and how they plan to control any run -off that may impact the wetland area. Morin replied that they would work with the Conservation Commission as they get closer to ensure there are no issues with run -off. Morin stated that the woodchips to be stored at the site would be picked up and taken away on a monthly basis. Morin felt that the wetland area would be protected and doesn't feel that the storage of woodchips will affect the wetland area. The Beverly Planning Board suggested they provide documentation and demonstrate to the Planning Board's satisfaction that it is possible to take access off the legal frontage from Sam Fonzo Drive. On behalf of the Planning Board, Dinkin thanked them for their time and said the Board will wait for their official filing. Morin and Cicoria exited the room at this time Request for Plan Modifications for Land Court Compliance and Consideration of Associated SANR Plan: OSRD #03 -10 & Special Permit #124 -10 — 1 Lake Shore Avenue — Lake Shore One Avenue Realty Trust. — Endorsement of SANR Plan and Signne Plan Robert Griffin from Griffin Engineering went over the approved plans from July 2010, which granted a special permit for a pork chop lot, and approved OSRD plans to divide the property into 4 building lots. The approved permit plans were presented to Land Court for filing showing new boundary lines. Land Court has requested modifications to the property boundary descriptions of the parcel by +/- 6 inches in several locations. The modification results in slight changes to the lot lines and lot areas including open space reducing the overall size of the lot by about 200 s.f of land. Griffin stated that the overall layout, frontage, and OSRD all remain the same. Adjustments to the descriptions on the lot lines are considered minor changes. Griffin said that he met with Zambernardi showing her the old and new descriptions to show that they are indeed minor modifications and are still within the thresholds for zoning compliance. Griffin asked that the Planning Board approve the changes as minor modifications /amendments to the approved OSRD site plan and pork chop lot special permit. Griffin also asked that if approved that the Planning Board also endorse a SANR plan reflecting same. Thomson requested to see where the modifications are on the plans. Griffin showed Thomson a copy of the plans. Griffin also asks for the Board's approval of a sign package, as stipulated in the OSRD and special permit approval. He stated that they propose 30 boundary markers and 20 signs. In addition, Town Engineer Frank Killilea has asked that markers be placed every 100 ft. Public Meeting Minutes — Planning Board December 21, 2010 Page 3 of 11 Thomson asked if there is an example of the signs on the plan. Zambernardi asked what signs will be made out of Griffin responded that the signs are aluminum with galvanized steel posts and there is an example on the plan. Zambernardi read a letter from City Engineer Frank Killilea, dated December 21, 2010 to the Planning Board for the record. Mack thought that markers every 100 ft. are a bit excessive. Zambernardi responded that the disturbance done to the open space area on Beaver Pond Road in the past has her taking a position of being more conservative with signage. She agrees to the marking of all open space at all deflection points /corners. Harris questioned if residents across the street can see all the markers. Griffin responded no. Mack: Made a motion to approve the proposed amendment requests as minor modifications to the approved OSRD site plan and pork chop lot special permit. Motion seconded by Flannery. Motion carried 7 -0 -1 with the Chair abstaining. Mack: Made a motion to accept the changes /amendments as requested. Motion seconded by Flannery. Motion carried 7 -0 -1 with the Chair abstaining. Mack: Made a motion to approve the signage plan. Motion seconded by Flannery. Motion carried 7 -0 -1 with the Chair abstaining. Request for Minor Modification: Site Plan #99 -09 — Beverly Retirement Community, 105 Cherry Hill Drive (formerly 145 Conant Street) — Harvest Development LLC Charles Ortner was present to discuss the request for a minor modification to approved site plans from July 2009. The original approved architectural elevation plans specify that the roof color shall be Architectural 25 -year shingles in "Barkwood" color. The developer has submitted a request to the Planning Board for approval of a change in the roofing colors to "Shadow Black ". In addition, they have asked that the metal roof awnings and front /rear main doors be changed to "Colonial Red ". Zambernardi read a letter from Lenity Group requesting minor modification to the roof colors for the record. Rendered elevations and a color board were submitted to the Board for the record. Mack: Made a motion to consider that the requested changes are minor in nature. Motion seconded by Flannery. Motion carried 7 -0 -1 with the Chair abstaining. Mack: Made a motion to approve the request for a change to the roofing color and front and rear main door color. Motion seconded by Flannery. Motion carried 7 -0 -1 with the Chair abstaining. Public Meeting Minutes — Planning Board December 21, 2010 Page 4 of 11 Mack: Made a motion to recess and convene for the public hearing. Motion seconded by Hutchinson. Motion carried 7 -0 -1 with the Chair abstaining. Public Hearing back in session at 8:02 p.m. Continued Pubic Hearing — 875 Hale Street Definitive Subdivision Plan — create 6 new lots in R10 Zone - Montrose School Park, LLC. Matz recused himself from the discussion and any vote(s) at this time. Mack: Made a motion to waive the reading of the public hearing notice. Motion seconded by Harris. Motion carried 6 -0 -2 with Chair abstaining and Matz recused. Zambernardi gave an overview to the Board on where things stand to date. a. The public hearing has not begun yet. b. Work has been done between developer, City Engineer, and Traffic Sergeant to address concerns from the City Engineer and Traffic Sergeant over safety at the intersection of the new street and Hale Street. c. Traffic report — revised plans to meet some of the findings. d. No letters from department heads or from any of the neighbors have been read into the record yet. Attorney Brad Latham, Peter Ogren of Hayes Engineering and Jeff Rhuda of Symes Associates were present on behalf of the applicant. Peter Ogren discussed the plans in detail. A conventional subdivision plan has been submitted to create a 50 -ft. wide dead end roadway and 6 building lots on the 2.7 -acre parcel. There are two existing structures there now. The main house on the property would be demolished to make room for the new roadway entering off Hale Street. The secondary house on the east side of the property would remain as one building lot and 5 new building lots would be created. Peter Ogren went over the topography of the subdivision plan along with details of utilities, water connection, and drainage. The Beverly Conservation Commission issued an Order of Conditions. The Conservation Commission hired an outside consultant to review the drainage system resulting in a few minor changes to the drainage. As of the last meeting, City Engineer, Frank Killilea had requested a peer review of the traffic study due to safety concerns at the proposed intersection of Hale Street and the new roadway. Traffic Sergeant Bill Page shared Mr. Killilea's concerns and has spent the past several weeks collecting data on traffic speeds at this particular curve on Hale Street. The developer and their Traffic Engineer further discussed the new roadway and met on- site with Mr. Killilea and Sgt. Page. The developer reworked the traffic study and Public Meeting Minutes — Planning Board December 21, 2010 Page 5 of 11 incorporated Sgt. Pages reported traffic speeds. The plan has been amended with a graded sight easement area, a stop sign, and removal of a stonewall to achieve acceptable sight distances. Mr. Killilea and Sgt. Page have submitted recommendation letters to the Beverly Planning Board on these amended plans. Zambernardi read the following letters to the Planning Board aloud for the record: 1. Beverly Engineering Department, Frank Killilea, Director of Engineering, letters dated October 19, 2010, December 9, 2010 and December 20, 2010. 2. Board of Health, letter dated October 08, 2010 3. Beverly Police Department, letter dated December 14, 2010 4. Fire Department Bureau, letter dated September 29, 2010 5. Beverly Conservation Commission - order of conditions. 6. RJ Lyman, 852 Hale Street, letter dated November 12, 2010 7. Charles Sherrill, 858 Hale Street, letter dated November 14, 2010(letter forwarded by Ann Lewis, 903 Hale Street). 8. Letter from Brad Latham in response to Mr. Lyman's letter, dated December 21, 2010 Thomson asked if the drainage plan offers no increase inflow offsite or runoff onsite. Ogren responded that the drainage report was reviewed by an independent consultant and found to be sufficient. Thomson asked about the difference between a tap sleeve and 1 inch gate to waterline. Ogren explained the difference. Thomson asked if the plans have streetlights. Ogren said that the plans do not show any streetlights. Attorney Latham said they are optional being a minor street and therefore not required. Hutchinson asked about the size of the 6 lots. Ogren responded that they vary in size. Latham referred Hutchinson to the lot plan, which shows lots between 10,163 to 25,403 s. f. Dinkin opened up the discussion to any questions from the Board or the public. Bob Lewis, 903 Hale Street, asked Ogren to go back to the plans to show him if there is a 25 ft. "no disturb zone" on the plan. Ogren responded that there is and showed Mr. Lewis the plans. Ogren said that the Conservation Commission has approved the plans. There are two buildings up against the "no disturb zone" with one existing structure that is in it, which is a nonconforming building. Mr. Lewis said it was his belief that the Public Meeting Minutes — Planning Board December 21, 2010 Page 6 of 11 Conservation Commission had asked for fencing there. Ogren responded that he wasn't aware of it. He said that he does not feel there is any problem with walking in that area. Mr. Lewis asked about changing the grade from road to the houses. Ogren responded explaining that the houses on the lots will be basically level and he went over the grades for Mr. Lewis. RJ Lyman, 852 Hale Street, stated he would like to further address Mr. Latham's letter noting that Mr. Latham referenced two pieces of law, Section 81M of the Subdivision Control Law and the Westwood case, and his letter did not reference any law. He stated that the Westwood case basically says that if there is an incompatibility between a subdivision and an OSRD style ordinance, the OSRD ordinance is invalid. He stated that what he proposed is a way for the Board to make sure that this subdivision as approved is consistent with the OSRD because it notes the OSRD's existence. It doesn't prejudge what the Board will determine, but it gives the Board the right to enforce the ordinance. He referenced the 1974 DeMateo case, which indicates that if you have an overlay district (which the OSRD is), if there is not a reference on the plan, that overlay is not enforceable by any authority. If you don't have that notation, there is no ability to enforce the OSRD. If you don't include this notation you also create a basis for a challenge of this subdivision. The notation would not prejudge the end result of the OSRD hearing, that's why he proposed it. He asked the Board to preserve their rights to enforce the ordinance. Dinkin asked if the Board or public had any comments in support at this time. Mack asked if the OSRD is a zoning overlay. Mr. Lyman stated that it was. He stated there is a reason that Beverly's ordinance is different from Westwood's. He stated that the legal standard in the Westwood case was "comprehensive, reasonably definite and carefully drafted ". He stated that Beverly has quantitative standards and Westwood did not. Theirs was derived based on "general public considerations ". Beverly's is in fact comprehensive, reasonably definite and carefully drafted because it includes quantitative standards. He added this was the judgment of the State's high court. He stated that you have met that standard but if you don't include this notation/condition you will have waived your right to defend it. He reiterated that the Board is protecting its right to enforce the ordinance and it wouldn't preclude the developer's ability to go and seek waivers under the ordinance later on. Attorney Latham noted the Mr. Lyman and he have presented two different points to the Board. He stated his concern is the confusion caused by the hypothetical case of the Board approving a subdivision plan and that if you do that and then you put a provision that the OSRD standard applies, that creates confusion. He stated that there is also a question of what is subservient. He asked if the Subdivision Control Law is subservient to a local ordinance. He stated that there are more important and more constructive things to do than to argue over this point. He then filed a request and granted permission for an extension of the time for the Board to act on the application. He stated that the Public Meeting Minutes — Planning Board December 21, 2010 Page 7 of 11 Board has heard from fire, police, engineering and the Board of Health and that the Board held the public hearing. He asked that the Board close the public hearing to give them more time to work through the OSRD process. He requested the extension date of April 30, 2011. Attorney Lyman referred to Section 81Q of the Subdivision Control Law and section 3.7 of the Board's rules and regulations both say that the subdivision has to comply. There are no other impositions the Board can make other than the ones expressly called for in the zoning. By asking for an extension he is preserving his options. They are doing this to freeze the zoning but they are also doing this to be able to have the plan approved and a basis for them saying that the Board has waived its OSRD rights and to set up the same fact pattern as there had been in the Westwood case. He suggested that the Board has heard everything it needs to hear and he suggested the Board make a decision rather than extend. Thomson stated that he doesn't see the downside in delaying the matter and is in favor of the extension to see how the OSRD turns out. Thomson stated that personally he does not like the conventional plan and doesn't want to see the conventional subdivision built but he is in favor of the extension. He would be personally inclined to deny the plan now rather than approve it. He is open to delaying to see how the OSRD works out. If the Board were pushed based on dates, he would suggest a denial because the OSRD is on the books and the Board can't ignore it. He would rather keep the Board's options open. He stated the developer is entitled to be before the Board in terms of the subdivision approval and the developer has offered a timeframe for the Board to withhold its decision until we see how OSRD works out. He stated that he doesn't like the idea of approving a plan that he personally would never want to see built, even with a notation as Mr. Lyman suggested on it. He stated that the Board still has the option of doing as Mr. Lyman suggested in April. Jeff Rhuda of Symes Development stated that prior to the January hearing they would be submitting a full OSRD Site Plan and definitive to see this process through. He stated their intention is to see it all the way through and to give the Board ample time to do so. He stated that if they don't make the April date, they would extend the deadline for decision again. Thomson encouraged that the developer file a plan that shows 50% open space. Dinkin said he is not convinced that the PB has the authority to approve the conventional plan. He would like to keep the hearing open in order to get the City Solicitor's opinion on the matter. Mr. Lyman suggested that he and Mr. Latham submit letters on the question to the City Solicitor. Thomson stated that he doesn't feel the need to keep the public hearing open for this reason, that the Board can get guidance from the City Solicitor during any time during the process. Public Meeting Minutes — Planning Board December 21, 2010 Page 8 of 11 Dinkin still holds on keeping the public hearing open but doesn't have an objection to extending the time allowable for decision until April 30, 2011. Mr. Lyman said that if the public hearing is closed then the attorneys should communicate directly to the City Solicitor. Dinkin asked if there are comments in opposition to the plans. There are none. Mack and Thomson agreed that the Board could get a legal opinion from Roy Gelineau after the public hearing is closed. Mack: Made a motion to close the public hearing at this time. Motion seconded by Thomson. Hutchinson and Dinkin vote in opposition. Matz in abstention. Motion passes 5 -2 -1. The regular meeting was called back to order at 9:03 p.m. Continued Discussion/Decision — 875 Hale Street Definitive Subdivision Plan — Montrose School Park, LLC. Zambernardi read the letter of request for an extension date of April 30, 2011. (Filing date December 21, 2010). Mack: Made a motion to approve the extension request for Montrose School Park, LLC to April 30, 2011. Thomson seconded the motion. Motion carried 6 -0 -2 with the Chair abstaining and Matz recused. Matz joined the meeting at this time. Bass River Estates Definitive Subdivision (a.k.a. Foyer Avenue Extension) — Expiration of Construction Completion Date (December 31, 2010) — Joseph J. Phelan III, Bass River LLC Zambernardi read a letter of request from Attorney Tom Alexander asking the Planning Board to concur with the automatic 2 yr. extension that is offered by the Permit Extension Act. Board members acknowledged and concurred that there is an automatic 2 -year extension ending December 30, 2012. Cluster Subdivision Plan Chapman's Corner Estates (Settlement Plan) - Expiration of Letter of Credit (1/15/2011) — David Carnevale, Manager, Manor Homes Development, LLC. Zambernardi stated that the letter of credit expiration date does not match the construction completion deadline. Public Meeting Minutes — Planning Board December 21, 2010 Page 9 of 11 Zambernardi read the letter of request dated December 21, 2010 from Kimberly Kramer of Berlutti and McLaughlin on behalf of the developer requesting the reduction of the bond amount from $305,525 to $167,113, which reflects the cost of uncompleted work. Zambernardi read a letter from Frank Killilea, Beverly Engineering Department, recommending the Planning Board reduce the roadway bond amount to $167,113. Dunn questioned why it seems that not much has been done. Griffin responded wanting to clarify to the Board that there is a misunderstanding on what work has been done. He went over the details of the substantial progress that has been made over the past year. Thomson: Made a motion to approve the request to reduce the bond amount from $305,525 to $167,113. Mack seconded the motion. The motion carried 7 -0 -1 with the Chair abstaining. Thomson: Made a motion to accept a Letter of Credit reflecting the revised amount. Harris seconded the motion. The motion carried 7 -0 -1 with the Chair abstaining. New or Other Business a. MassDevelopment Finance Agency notification of Stoneridge Children's Montessori School, Inc. and Landmark School Inc. application for revenue bond for proposed project. Dinkin notified the Board of these projects. Matz asked questions about the process for making comments on the projects. Matz stated that he could see that the Montessori School is reducing its debt but that the Landmark School is proposing a significant project. He read the proposed project aloud. Dinkin responded that if it is all on their campus, they are subject to an educational exemption. b. Site plan special permit Burnham Apartments on Rantoul Street. Set Public Hearing Date. Motion: Mack made a motion to set the public hearing date for January 18, 2011 at 8:00 p.m. at the Senior Center. Flannery seconded the motion. The motion carried 7 -0 -1, with the Chair abstaining. c. Dinkin announced that this will be Dunn's final meeting. Dunn has served as a member of the PB for approximately 15 years. Dinkin thanked Dunn for her many years of service both personally and from the City of Beverly. d. Report of the Inclusionary Housing "fee in lieu of study committee. Zambernardi stated that the subcommittee that was created to discuss procedures for calculating "fees in lieu of affordable units has met and is prepared to go over the findings from the meeting. Hutchinson stated that it was agreed that trying to use construction costs would be too complicated and added multiple layers of difficulty to it. They looked at sales prices for Public Meeting Minutes — Planning Board December 21, 2010 Page 10 of 11 a 3 -year period of time (2007, 2008, 2009), received from the assessor's office. A spreadsheet was provided to the Board that gave the average sale price of homes over the past three years. Ratios, data and an initial view of a sliding scale percentage on all sales were included. Hutchinson said that the matter is still very much up for debate, comments, ideas and /or revisions. It was the consensus of the Board that the fee in lieu of should be substantial enough to encourage developers to build housing vs. paying the fee in lieu of Thomson asked how they came up with the idea of the sliding scale. Hutchinson replied that there is no particular calculation for coming up with the sliding scale. It was based on how the subcommittee felt and that it is very subjective. Dunn and Matz talked with other communities to see how they have come up with a fee schedule. It was a mixed finding between a flat rate fee, based on construction costs, and some communities not having a fee schedule at all. Matz said he is in constant debate over hard and soft construction costs and feels there would always be loopholes to get around them. Dinkin said he would like to compress the scale a bit with an upfront assessment of what their cost should be and based on construction costs suggesting 50 -55 to 30 -35, increasing the cost in higher -end development and lowering the cost for low -end development. In general, the low -end developer probably will want the low -end units in the subdivision because there won't be that big of a difference between the low -end to the higher -end unit. Dinkin stated that he would like to make it very difficult for the developer to escape putting the affordable unit onsite in the development. Dunn stated that the cap should be $400k at the highest. She said that in higher -end $I in sales and up, land is extremely valuable. On a $500k lot, putting a $200k or less affordable housing on the lot doesn't make sense and she just can't see that happening in Beverly Farms. Hutchinson said that the fair market value would be lower because of the restrictions on the property. Thomson thinks a flat fee would work best across the board but to put a cap on it so that no one is punished and no one is incentivized. Hutchinson said she would put together and run the numbers with Thomson's and Dinkin's suggestions to present at the next meeting. Annroval of Minutes: October 19. 2010 and November 16. 2010 Regular Meetings. Matz recommended edits to the minutes. Zambernardi referred to the October 19 minutes. She stated that the vote on the 875 Hale Street Yield Plan shows Harris voting in opposition. She noted that the written decision shows Harris as voting in favor. Harris confirmed that he voted in opposition. The Board directed that the written decision be amended to reflect this clerical error. Public Meeting Minutes — Planning Board December 21, 2010 Page 11 of 11 Harris: Made a motion to approve the minutes of the regular meetings dated October 19, 2010 with amendments. Hutchinson seconded the motion. The motion carried 5 -0 -3 with the Chair, Flannery and Mack abstaining. Harris: Made a motion to approve the minutes of the regular meetings dated November 16, 2010. Hutchinson seconded the motion. The motion carried 7 -0 -1 with the Chair abstaining. Adiournment Harris: Made a motion to adjourn the meeting. Flannery seconded the motion. Motion carried 7 -0 -1 with the Chair abstaining. The meeting adjourned at 9:52 p.m.