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2011-03-29CITY OF BEVERLY MASSACHUSETTS PUBLIC MEETING MINUTES BOARD OR COMMISSION: SUBCOMMITTEE: DATE: Planning Board Tuesday, March 29, 2011 LOCATION: Beverly City Hall, Council Chamber, Third Floor MEMBERS PRESENT: Chairman Richard Dinkin, Vice Chairman John Thomson, Michael O'Brien, Ellen Flannery, Charles Harris, David Mack, Ellen Hutchinson MEMBERS ABSENT: James Matz OTHERS PRESENT: Assistant Planning Director, Leah Zambernardi RECORDER: Diana Ribreau Chairman Dinkin called the meeting to order at 7:30 p.m. 1. Subdivision approval Not Required Plans (SANR's) a. 134 McKay Street — City of Beverly Golf and Tennis Club: Request for Certificate pursuant to MGL 41, Section 81X Zambernardi reminded the Board that it had endorsed a plan in July 2010 splitting a parcel of land off from the Beverly Golf and Tennis Club for the purpose of building a new maintenance structure upon it. Though the Board endorsed the plan it has not been filed at the Registry of Deeds within the 6 -month timeframe allotted. The Registry of Deeds may accept the plan only if the Planning Board certifies "that the approval has not been modified, amended or rescinded, nor the plan changed ". Zambernardi read a letter from the City's Planning Director Tina Cassidy dated March 24, 2011 requesting the 81X Certificate pursuant to MGL 41 and she stated that the City Engineer has reviewed the plan and confirmed that it meets the criteria noted above and required for the certificate. Dinkin asked why the plans were not filed within the allotted time. Cassidy responded that she believed that she would have time before the Christmas Holiday to submit the plans to the Registry however she was not able do so. Thomson: Made a motion to grant the Certificate pursuant to MGL 41, Section 81X and to affirm that the plans have not been modified, amended, rescinded nor changed since the Board endorsed the plan back in July 2010. Motion seconded by Hutchinson. Motion carried 6 -0 -1 with the Chair abstaining. Public Meeting Minutes — Planning Board March 29, 2011 Page 2 of 11 2. Pending Application for Modification of Wellington Heights Definitive Subdivision (a.k.a. Oak Hill Subdivision) - Request for Waiver of Owner Signature on Form C Application. Glenn Wood on behalf of Roundy Estates, LLC. Dinkin stated that this matter is not a public hearing therefore members of the public are not allowed to speak during the discussion. Glenn Wood, 50 Rowes Wharf, Boston, representing Roundy Estates, LLC stated that the client owns a 10 -acre parcel of land in Wenham just north of the involved stub along the Beverly - Wenham line. The property is bounded to the south by the Beverly - Wenham line, to the north and east by the Miles River, and to the west by another undeveloped property. Roundy Estates, LLC recently received a Flexible Development Special Permit and Definitive Subdivision approval from the Town of Wenham for a 5 -lot subdivision containing 5 building lots and 6 units (4 single - family homes and one affordable duplex). No appeals have been filed. Approximately 60% of the parcel would be dedicated for open space. The sole access to this development is through Beverly via Old Rubbly Road. In 1986, the Beverly Planning Board approved the Wellington Heights Subdivision (a.k.a. Oak Hill Subdivision), which created Old Rubbly Road in Beverly, including the stub that is the subject of this application. The developer at that time requested a waiver for the paving of the stub. At that time the Beverly Planning Board waived the requirement that the stub be paved. Wood stated that in order to improve the stub, the City of Beverly has determined that the project requires approval from the Beverly Planning Board to modify the previously approved subdivision plan. Wood stated that the last task is to come up with a finalized paving plan for the remaining stub. Wood explained that approximately 10 years ago his clients' father went to the D.P.W. and put together paving plans for the roadway. Those plans were reviewed but never officially approved. With the recent approvals in Wenham the paving plan has been down scaled. These plans have been reviewed by D.P.W. and the Beverly Planning Department more recently. When they went to submit the plan as a minor modification to the existing subdivision plan the planning staff felt that the application required a signature of the owner in addition to the applicant. Wood and his client do not feel that it is necessary to require the owner signature whether the owner is the City or the former developer. Wood stated that they have consulted with the Beverly City Solicitor and the Beverly Planning Department regarding the matter. It is his belief that the easiest and most efficient way to do this at this point is to request a waiver of the signature of the owner so that they can move forward to the substance of the modification. Dinkin opened the meeting to questions from the Board members. Thomson asked why Wood feels waiving the owner signature is the most effective way of moving forward. Wood responded that there are differing opinions of who actually owns the stub. He states that it is unclear of the stub's true ownership. Wood said that if the City doesn't own it then the original developer owns it and that corporate entity has Public Meeting Minutes — Planning Board March 29, 2011 Page 3 of 11 since dissolved. Wood further stated that the ownership of the stub isn't legally the relevant question. The only logical person to pave the stub at this point would be the Wenham developer. It is their legal position that pursuant to M.G.L. Ch. 41, S. 81W, they don't need the signature of the owner. He stated that they are going for the waiver request to try and expedite the process and move past this to get into the technical review of the paving plan. Wood stated his opinion that this is a ministerial act that they are proposing. He stated that this is somewhat of a bizarre case, however there is no harm no foul to what was done when the plan was originally approved and they are eager to move to the next phase. Mack referred to cases under the Statute and asks how the project has some benefit to the City of Beverly. Wood responded that had the Planning Board not granted the waiver to a paving plan back in 1986 they wouldn't be here today. There is no quid pro quo in this case and no statutory requirement that there be a benefit to the municipality. He stated that the standard for granting a waiver is basic reasonableness. Harris asked what the consequences would be if the road is not paved. Wood responded that the development would not go forward. He stated his opinion that this would result in the constitutional taking of his client's project and they would be in litigation with the City of Beverly. He reminded the Board members that the City of Beverly has retained outside counsel, which has looked at the plans. Without speaking for them, Wood feels that they believe this is a straightforward paving plan. Dinkin asked Planning Director Tina Cassidy if the decision about the requirement to provide the signature of the owner was her decision. Cassidy responded that she and Zambernardi discussed the matter and they both felt that the signature of the owner /applicant and signature of owner (if applicant is different) is required in order for an application to be considered complete. Matz asked Cassidy if it is the City's opinion that the City owns the stub. Cassidy said that she believes the City is the owner however she would like to refer the question to Roy Gelineau for his understanding of ownership. Dinkin asked Wood how his client would be injured by the Board requiring the owner signature if it is his and the City's position that the City is the Owner? Wood responded that if the Planning Board feels that it is required they will seek to do that but he reiterated that he doesn't feel it is required under the statute. Wood said he is happy to get the City Solicitor involved and suggested that maybe it should formally be brought to the City Solicitor's attention by the Board. Wood continued to say that he doesn't see it as a formal legal requirement. Thomson asked that Wood briefly go over the steps in the process from the beginning so that the Board has a clear understanding of the case. Wood responded by giving a brief overview. Wood concluded by stating that the underlying question that is somewhat unclear is... was the stub accepted as part of the approval? Public Meeting Minutes — Planning Board March 29, 2011 Page 4 of 11 Dinkin stated that for the benefit of all to define the issue that is before them, he asked "ought we to waive what our staff believes is a requirement to the application ?" Wood responded that the City Solicitor and outside counsel have spent many hours on this project and to this issue and the stub. Dinkin replied that there is no documentation before the Board that reflects any of the hours spent and topics discussed. Dinkin stated it is the "norm" that the Planning Board does not make a decision until all the facts are presented. Wood stated that in any subdivision filing you would have the signature of the applicant and owner however this particular situation is not the "norm ". Wood asked that the request be continued to the next public meeting and to get the City Solicitor's input on the matter before a decision be made. He continued to say that they would like to get to the core of the paving plan and work with the City of Beverly Planning Board and staff to get through the odd situation that is before them. At this time, Dinkin opened up the meeting to discussion. Thomson stated that he does not feel comfortable making a decision without all the information in front of them and he would like input from the legal department. Wood stated that the proposed paving plan is far smaller than would have been required if paved back when the subdivision was originally approved (20ft as opposed to 32ft). Dinkin asked Cassidy to describe the question(s) that were posed to Mr. Gelineau with regards to ownership of a right of way and the need for the owner's signature that is required. Cassidy responded. O'Brien asked Cassidy to explain where the application goes next if the waiver is granted. Cassidy responded. Mack stated that he would vote to allow the application to be accepted so that a public hearing can be held. Dinkin disagreed and stated that it is his belief that the Planning Board is being asked to second guess the staff s decision. Dinkin feels it is an uncomfortable precedent to establish. Dinkin believes overruling a staff decision should only occur only in the most egregious of cases. Mack said that he doesn't find it egregious but that it is a very unusual situation where it seems unlikely to happen again and the end result is not going to lead to the final decision on the amendment of the modification of the subdivision. Wood stated there were email exchanges he had with the staff, which he felt it was clear that the suggestion was to accept the waiver. Wood stated that if his client doesn't have the opportunity to move forward and go to the merits of the filing, his client would have "injury" because that puts them in a conundrum of who in fact owns the stub and thus creates complete hardship. Public Meeting Minutes — Planning Board March 29, 2011 Page 5 of 11 Dinkin disagreed with Wood's perception of the emails that were sent and that following the path of least resistance would be for the benefit of his client only. Flannery stated that there has been no documentation given to the Board relative to any exchanges between the parties mentioned. Harris thinks that Wood is sending a mixed message. Harris stated that the Planning Board should get further clarification from the City Solicitor before a decision is made. Dinkin asked for a motion. Mack made a motion to grant the request for a waiver and that the application is accepted notwithstanding the lack of the Owner signature. He made note that "the owner" as the statute requires it be an interested person and Mack feels the party is clearly interested. There was no second on the motion. Dinkin stated the motion fails for lack of a second. Dinkin asked for another vote. Thomson made a motion to defer any decision until the Planning Board gets an opinion from the City Solicitor on the effect of granting or not granting the waiver. Flannery seconded the motion. Motion carried 5 -1 -1 with Mack in opposition and the Chair abstaining. 3. City Council Legal Affairs Committee Request for Planning Board Comments - Proposed Amendments to Watershed Protection Overlay District Ordinance and May - Presentation by Bob Hames of the Safe Drinking Water Alliance and Planning Board Discussion/Recommendation Robert Hames, Senior Geographic Information Systems Analyst for DEP, 60 Grover Street, Beverly presented a PowerPoint presentation of the proposed amendments to the Watershed Protection Overlay District Ordinance and Map. He stated that out of the 170 reservoirs in Massachusetts they have worked on 105 reservoirs with 66 remaining. Dinkin briefly interrupted Mr. Hames at 8:30 p.m. to delay opening the scheduled Public Hearing until 8:45 p.m. Flannery made a motion to delay the Public Hearing until 8:45 p.m. Mack seconded the motion. Motion passes 6 -1 with the Chair abstaining. Harris made a motion to reconvene the regular meeting at this time. The motion was seconded by Flannery. Motion passes 6 -1 with the Chair abstaining. Mr. Hames continued his presentation reviewing the following topics: • Massachusetts Drinking Water Regulations and Protection Zones • USEPA - Source Water Assessment Program Public Meeting Minutes — Planning Board March 29, 2011 Page 6 of 11 • What the revisions will accomplish • Wenham Lake Reservoir Data Analysis • Longham Reservoir Data Analysis • High Yield Aquifer Data Analysis • Existing Beverly WPOD Extents • Proposed changes Mr. Hames requested comments from the Planning Board on the proposed changes and if they support it, that they provide a letter of support to the City Council. 4. Public Hearing - Open Space Residential Design (OSRD) Site Plan Application #02 -10, 875 and 875 V2 Hale Street - Montrose School Park, LLC. Zambernardi read the legal notice for the record. Jeff Rhuda, Symes Development, stated that Mr. Ogren was unable to attend however Mr. Bergeron from Hayes Engineering is present along with James Emanuel, Architect for Hayes Engineering. Emanuel said there are a number of versions of the OSRD and he showed the Board the Preferred Plan. He reviewed the total square footage of the 6 lots along with the buildable square footage on the last plan presented. The plans presented before included 44% open space. Emanuel stated that the Planning Board had asked that they work on improving the plans to comply with the 50% open space requirement. The new OSRD plan shows 50.17% open space. Emanuel went over the square footage of the lots with the new plan. He reviewed the landscape design plans for plantings surrounding the homes stating that there will be a grass area to the plantings and beyond the plantings is field /meadow. The plantings have been added to enhance the buffer. Dinkin opened up the meeting to any questions from members of the Board. Thomson asked if the open space plan would be conveyed to the homeowners association. Emanuel responded yes. Thomson asked if the private yard easement areas would be common area and would the owners have the right to use the open space. Emanuel said that they would be allowed to use open space for recreational use. Rhuda stated the private easement areas would be for the exclusive use of the abutting owner and they stated they are looking to the Planning Board for restrictions on the area. Thomson questioned the no disturb zone. Emanuel responded and said there are plans submitted for the no disturb zone. Bergeron said that the no disturb zone shows 50% of the tract area not the buildable area and that the 50% of the buildable area and tract area both meet the criteria needed. He also noted that there have been several reviews with the Conservation Commission, Fire Department, and Board of Health etc. Public Meeting Minutes — Planning Board March 29, 2011 Page 7 of 11 Thomson asked that someone review the criteria for a no disturb zone and what the dimension of the shared driveway would be. Bergeron replied. Bergeron stated that a drainage plan has been submitted. There is significant reduction in run off and the plans are in full compliance on that aspect. Thomson asked to review the drainage and dimensions. Bergeron reviewed both. Hutchinson cited the square footage of the lots, without counting the 25ft wide yard easement. She said that it would be her understanding that it would add 1,400 -2,300 s.f.. With that being said she asked what would be allowed in those areas. Bergeron said that they are looking to the Planning Board to decide what is allowed. Zambernardi stated that on sheet 4 and 5, there is an attachment to the proposed houseswhich falls within the private yard easement areas. Rhuda said that inside the lot area would be a small deck or set of stairs. Outside the yard area would be a patio. Flannery asked if the paving and walkway are in the 25ft. yard easement area. Emanuel responded yes. Hutchinson said she is bothered by the fact that by defacto they are taking away 7,850 sf from the open space which is about 1 /5 of the total amount and that the yard easement would blend in and be part of the proposed yard. She stated that with this scenario removing s.f from the open space would effectively reduce the open space 20 %. Latham stated that there are tight restraints on what can be done and that the objective is to have it attainable for open space. Hutchinson asked who bares responsibility on the taxes. Latham responded that it would be the Homeowner's Association and that all homeowners would contribute including liability insurance and things of that nature. He added that a bond must be posted to help with restrictions that are in place. Dinkin asked if Katherine Whittier Place is a roadway or common drive. Rhuda responded that the City Ordinance allows for a common drive. Zambernardi read the following letters for the record. Letter dated 3/29/2011 - Eric Barber, City Engineer Letter dated 3/28/2011 - Amy Maxner, Environmental Planner, Planning Dept. Letter dated 3/24/2011 - Sgt. Bill Page, Beverly Police Department Letter dated 3/24/2011 - Rich Benedetto, Parking and Traffic Commission. Letter dated 3/24/2011- Bill Fiore, Beverly Fire Dept. 3/24/2011 - Bill Burke, Department of Public Health 3/04/2011 - Kate Newhall, Design Review Board Public Meeting Minutes — Planning Board March 29, 2011 Page 8 of 11 Zambernardi read the following letters from members of the public 3/20/2011 Lewis, 903 Hale Street, Beverly 3/25/2011 Gal, 861 Hale Street, Beverly 3/28/2011 Lyman, 852 Hale Street, Beverly Dinkin asked for clarity from Mr. Latham. He asked, for instance, if the owner of Lot 3 could have a barbecue in the private yard easement area of Lot 5 under the terms of the easement. Latham responded no. Latham said that if the new plan is not accepted they would go to the original Preferred Plan. At the hearing the Board voted and approved (SP -6) with 42,521 sf of open space. At the meeting a member of the public complained about the open space presented on the plan. The Planning Board at that time asked that the developer to do their best to get to 50% and that is what they did. Latham stated that it is a compromise to get to the 50% open space and one of the purposes of the open space ordinance is to keep the land in its natural state and that is what they have done in this case. Dinkin asked if there were any clarifying questions from members of the public. Tom Grant, 868 Hale Street, asked if someone is to buy any one of the 3 lots would the property come with 4,100 -4,200 sf granted through the easement. Hutchinson responded that the buyer would get an increase in the size of the property by approximately 1,500- 1,600 sq. ft. to use that space. Grant asked if for an example the owner wanted to put a swing set in that area, who they would go to for approval. Latham responded that any restrictions and allowances will be laid out based on restrictions put forth by the Planning Board and would be stated in the Homeowners Association. Grant asked about planting types and dimensions at full maturity. Emmanuel responded. Bob Lewis, 903 Hale Street, asked if the homeowner would be allowed to plant more trees at a future date. Rhuda responded that the Planning Board would again determine the conditions however a fence would not be allowed. Dinkin said that the applicant has chosen to defer the set of restrictions to the Planning Board rather than the applicant making the restrictions. The Planning Board will vote on the submission of the modifications made to the new plans. Thomson stated that there are lots of documents to review which would all be all part of the final decision. Dinkin stated that it is a matter of law to keep the public hearing open until the Planning Board has received sufficient information to reach a decision. Christopher Heep, Miyares and Harrington, 50 Leonard Street, Belmont, MA, representing Kevin and Susan Harrington, 865 Hale Street was present and asked for clarification that the L -1 Landscape Plan dated January 1, 2011 is the latest plan that is being discussed in the meeting. Latham responded it is the second version. The newest landscape plan is in color. Public Meeting Minutes — Planning Board March 29, 2011 Page 9 of 11 Dinkin asked for any comments in support from the public Latham stated that is office has given notice of the plan submission to the various City entities as required by the Ordinance. Dinkin asked for comments from the public in opposition. Bob Lewis, 903 Hale Street, stated that he is in opposition to the plans presented. He feels that the plans undermine the open space requirement of 50 %. He doesn't feel that the plans show true open space and he feels that it is the Planning Board's responsibility to bring any design integrity to the project and they should require 50% as required by the Open Space Ordinance. In addition Lewis said that Mr. Rhuda originally stated there would be at least 6,000 sf for the 6 lots on the OSRD Plan with the smallest lot size having 6,000 sf. The new plan shows much less than that. He refers to a letter by Mr. Rhuda dated September 15, 2010. Christopher Heep, Miyeres and Harrington, 50 Leonard St, Belmont, MA wanted to clarify the site line easement over his client's property. His client is amenable to the site line easement if certain conditions are met. No site line easement has been granted nor agreement has been completed as of yet. Also, they are discussing with the applicant to grant private enforcement rights over the open space that abuts his client's property. Heep noted that his client is the one mostly impacted by the encroachment or violation of the open space restrictions to the area. They are looking for the private ability to stop any encroachment into that area and will add any restrictions /modifications that the Planning Board determines to the documentation to be consistent across the board. Tom Grant, 868 Hale Street, stated that he is concerned with the direction suggested by the applicant on the lots. He is not comfortable with the smaller lot sizes of approximately 4,000 sf as originally suggested to be 6,000 sf in the OSRD. He feels that the easement is not sufficient under the Ordinance but in fact ownership conveyance is required. He requested that both areas need more clarification. Dinkin stated that the Public Hearing will not be closed this evening. Dinkin said he is uncomfortable with the yard easements. He would like to be convinced that smaller, less costly homes are not economically feasible or that absent the yard easements the lots are not marketable. He is not sure the applicant can demonstrate this to his satisfaction but that is what he would like to see. Dinkin asked that the Planning Board get the additional documentation because he would like the developer to make a better case on the need for the private yard easements. Thomson feels that the lot sizes are fine but he would like to revisit the open space. Rhuda stated that he could submit proposed yard easement language and he could get back to the Planning Board with expert testimony in regards to what was discussed. Dinkin stated that the project is time consuming enough and to give it a special hearing date. Public Meeting Minutes — Planning Board March 29, 2011 Page 10 of 11 Zambernardi said there is also a Conventional Definitive Subdivision Plan filed and the deadline for the plan is April 30 Dinkin asked Rhuda if they could put in a request to extend the time for the Conventional Definitive Subdivision Plan Approval until May 31. Rhuda responded yes. Mack made a motion to continue the Public Hearing on the OSRD plan to a Special meeting to be held on May 10, 2011 at 7:30 p.m. Motion seconded by Flannery. Motion carried 6 -0 -1 with the Chair abstaining. Dinkin called a 10- minute recess. Dinkin called the regular meeting of the Planning Board back to order at 10:30 p.m. 5. Planning Director Request for Planning Board Comments - Proposed Amendments to Section 29 -27 of Zoning Ordinance - Non - Conforming Situations Cassidy discussed the proposed amendments to Section 29 -27 of the Zoning Ordinance and presented a memo dated March 17, 2011 to the Board for review. Cassidy said that the results of a court case caused the Zoning Board of Appeals to rewrite the non- conforming section of the City's ordinance in 2004. Cassidy briefly went over the court case. The City essentially adopted a stopgap measure. Cassidy stated that the ordinance was not intended to be a long -term solution. A small committee was formed to work on the amendments and rewrite Section 29 -27. Limitations on the maximum size of properties that are non - conforming have been added along with latitude and flexibility with percentage restrictions that were not found in the original ordinance. They have worked on changes for over a year. The Zoning Board of Appeals is happy with the draft they have and are anxious to submit it to the City Council in hopes to get the ordinance adopted before the end of the year. The committee wanted the Planning Board to review the proposed amendments before submitting it to City Council in the event that the Planning Board had any major issues that would prevent them from submitting the draft. Cassidy mentioned that the ordinance is based on the Town of Danvers and Town of Lexington ordinances. It was the consensus of the Planning Board that the amendments are a good effort and they agreed that the draft should be submitted to the City Council. 6. Minor Modification Request: Site Plan #39 -98 - 54 Elliott Street - Redbox/Walgreens. Walgreens Zambernardi stated that the applicant has submitted a request for a minor modification to the approved site plan to install a RedBox - dvd kiosk on the Elliott street side of the Walgreens building. The request from the applicant is in Appendix B of the staff report. Thomson made a motion to approve the request as a minor modification. Mack seconded the motion. Motion carried 6 -0 -1 with the Chair abstaining. Public Meeting Minutes — Planning Board March 29, 2011 Page 11 of 11 Thomson made a motion to approve the changes in substance. Mack seconded the motion. Motion carried 6 -0 -1 with the Chair abstaining. 7. New or Other Business a. Walking_ Path to Conservation Restriction Area at Manor Homes at Whitehall Cnhilivi 6nn Zambernardi made mention that the Open Space Committee submitted a letter to the Planning Board dated March 2, 2011 regarding their concerns with completing and constructing a walking path connecting the proposed subdivision roadway to the open space. Zambernardi stated that a site inspection would be conducted in advance of the next meeting. The letter from the Open Space Committee requests that the Planning Board not authorize the final release of the performance bond until the matter is resolved. The Planning Board concurred. b. 875 Hale Street Definitive Subdivision Plan - Extension of Time Mack made a motion to accept the developer's assent to an extension of time for which the Board can make a decision on the Definitive Subdivision Plan for 875 Hale Street from the expiration date of April 30, 2011 to May 31, 2011. Motion seconded by Flannery. Motion carried 6 -1 with the Chair abstaining. Zambernardi asked when this matter should be placed on the agenda again. Dinkin stated this matter should be placed on the May 10 special meeting agenda. 8. Discussion /Recommendation - City Council Legal Affairs Committee Request for Planning Board Comments - Proposed Amendments to Watershed Protection Overlay District Ordinance and May - Presentation by Bob Hames of the Safe Drinking Water Alliance and Planning Board Discussion/Recommendation Zambernardi reminded the Planning Board that City Council had asked for comments to the proposed amendments to the Watershed Protection Overlay District Ordinance and Map by April 1, 2011. Dinkin proposed that comments be made at the next regular Planning Board meeting April 26, 2011. Dinkin tabled the rest of the agenda until the next Regular meeting set for April 26, 2011. Flannery made a motion to adjourn. Mack seconds the motion. Motion carried 6 -0- 1 with the Chair abstaining. The meeting adjourned at 10:40 p.m