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2011-04-26CITY OF BEVERLY MASSACHUSETTS PUBLIC MEETING MINUTES BOARD OR COMMISSION: SUBCOMMITTEE: DATE: LOCATION: MEMBERS PRESENT: MEMBERS ABSENT: OTHERS PRESENT: RECORDER: Planning Board Tuesday, April 26, 2011 Beverly Public Library, 32 Essex Street Chairman Richard Dinkin, Vice Chairman John Thomson, Michael O'Brien, Charles Harris, David Mack, Ellen Hutchinson, and James Matz Ellen Flannery Assistant Planning Director, Leah Zambernardi Diana Ribreau Chairman Dinkin called the meeting to order at 7:30 p.m. 1. Subdivision Approval Not Required Plans (SANR's). None. 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 was present to discuss the ongoing request for a Waiver of Owner Signature. He stated that at the conclusion of the March 29, 2011 Beverly Planning Board meeting members voted to request an opinion from the City Solicitor, Roy Gelineau on whether an owner signature is in fact necessary on the Form C Application and, if so, the effect of granting or not granting the requested waiver. He stated the Solicitor responded in a letter dated April 26, 2011. Wood stated that he concurs with all of the points stated in Gelineau' s letter. He reiterates his request for a waiver of the owner signature requirements. Dinkin opened the meeting up to questions from members of the Planning Board. Matz stated he was absent at the last meeting in March and asked clarifying questions. Dinkin asked Wood's opinion on the disposition of the property held by a corporate entity when that corporate entity is dissolved. Wood responded that he is not a corporate attorney and doesn't know. Mack stated that the issue is whether the public interest supports a waiver of the requirements that the owner to sign the application. Mack asked for Wood's opinion on what he feels is in the public interest. Wood responded stating that Gelineau raised every Public Meeting Minutes — Planning Board April 26, 2011 Page 2 of 5 one of the points in his letter and went over each one with the Board in relation to such. He further stated that anyone that has property adjacent to the stub could rely upon the ability to use this stub. Wood stated that if it had not been for the Planning Board granting a waiver requested by the developer to not pave the stub, the applicant would not need to present to the Planning Board today. Due to the stub not being paved, the property in Wenham is not developable. Wood and his client have relied on public opinions received having had numerous discussions with City Officials including the DPW that has confirmed the stub was a public way and that the applicant can do what is proposed to do. Wood noted that neighbors raised concerns that their properties would be affected if the project moves forward. Wood stated that the City Solicitor rejects that position (as stated in the letter) stating that the project would not affect their mortgage or the value of their property. Wood had previously cited several cases that Gelineau also cites in his letter. Further, his opinion remains that some corporate entity that ceases to exist in some capacity owns it, which results in an impossibility to get the owners signature. Dinkin reiterated that Wood said his area of expertise is not corporate law. Dinkin asked that if Wood was to engage in services to a corporate attorney that it would remain impossible to determine the disposition of ownership to this property. Wood responded that Mr. Symes would be the likely lead person to go to. Wood stated that he has spoken to Symes about this request and it has been represented to Wood that it is an irrelevant interest. Any owner has been gone for decades. Wood reminded the Board that they have tried unsuccessfully in the past in finding the Owner but that his only suggestion would be that they could try again. Wood said that he and his client would rather try to find the owner again than have the request denied. Thomson stated that if the Board did not grant the waiver, it would force the applicant to find someone who has ownership interest to sign the application. Wood responded that if the Board goes beyond the four corners of the letter from the City Solicitor it would end up in litigation. Wood referred back to the initial argument and the City Solicitor's letter and that Wood does not feel that the signature of the owner is necessary in this case. Wood said that in good faith they could choose to attempt to find the owner again repeating that they would choose that route over being denied the waiver. Wood said that it is their hope that the Planning Board would follow the input of the City Solicitor. Dinkin opened the meeting up for discussion by members of the Board. Thomson suggested that Wood make a good faith effort to locate the owner. Wood agreed to attempt it again even though they feel they have already done so. Dinkin also suggested that the applicant find a competent opinion of how the interest in that property devolves after the dissolution of that corporate entity. Wood responded that they went to the last living body out there and reached out to whom they thought may be the owner and it did not result in any answers. Public Meeting Minutes — Planning Board April 26, 2011 Page 3 of 5 Wood stated that the Planning Board created this when they granted the waiver back in 1986 to not pave the stub. The original plans had the stub paved. The Wenham property abuts the stub and they have the right to utilize and improve it. Wood added that it is irrelevant that the proposed project is in Wenham and the stub is in Beverly. Mack disagreed that the Planning Board created this issue. Mack continued to say that the developer of the Beverly subdivision did not own the Wenham property. It is likely the developer had no interest in it and didn't want to spend the money on paving the stub therefore requested a waiver and at that time the Planning Board just granted the developer's request. Wood agreed but said that it was known then that at some point in the future someone would come along to build on the Wenham property and therefore would need access through the stub. Mack asked if Wood's client recognized the issue that is before them and if it was clearly identified when they acquired the property. Wood responded yes. Wood continued to say that he had met with the DPW Director two years ago to look at the old paving plans. It was the DPW's opinion that a paving plan would need to be done. He also pointed out that the DPW initially didn't feel at that time it would be necessary to even go before the Planning Board however when the Planning Department was reengaged in it they felt that a modification needed to be done. Wood said they have met with city officials and had every confidence that the paving plans would go through. Dinkin asked Wood to confirm that the request would be to modify the subdivision plan. Wood responded yes. Dinkin asked that Wood describe his standing on the matter. Wood responded that legally it is his client's right as a direct abutter to a public right of way. Wood added that his client would be the only ones to come and pave the aforementioned right of way. Wood agreed that it is a unique situation but at its core they are trying to finish the paving that was required on the original plans that was waived back in 1986. Thomson made a motion to table the discussion until the next regular meeting on May 17, 2011. Hutchinson seconded the motion. Motion carried 6 -0 -1 with the Chair abstaining. 3. City Council Legal Affairs Committee Request for Planning Board Comments Proposed Amendments to Watershed Protection Overlay District Ordinance and Map. Zambernardi informed the Board that she has reviewed both proposals and has completed a red line copy between the previous and existing proposal showing the changes between both. Zambernardi said that there are many differences and she offered to send a copy to Board members. Thomson requested that the City Planner put together a narrative description of the major differences as well as get a copy of the red line items as mentioned from one ordinance to the other in advance of the next meeting. Thomson said that the Board is not ready for comments until they are fully informed on the matter. Public Meeting Minutes — Planning Board April 26, 2011 Page 4 of 5 Matz suggested that the Board also receive other comment letters already on public record such as from the Open Space Committee and the Conservation Commission. Zambernardi agreed to get all the requested items to the members of the Board before the next regular meeting. Thomson made a motion to table the discussion until the regular meeting scheduled for May 17, 2011. Matz seconded the motion. Motion carried 6 -0 -1 with the Chair abstaining. 4. New or Other Business a. Walking Path to Conservation Restriction Area at Manor Homes - Whitehall Subdivision Zambernardi gave a brief update. She reminded the Board that the Open Space Committee submitted a letter regarding their concerns about the walking path easement, which connects the open space to the proposed subdivision road. Since the March meeting, Zambernardi informed the Board that Planning Staff, members of the Beverly Conservation Land Trust and James Matz attended a site visit with Bob Griffin, the developer's engineer. Zambernardi reported that the walking path easement that was originally approved has a large obstruction of landscaping there now. Zambernardi said that the conclusion from the site visit was that Griffin plans to propose another alternative walking path on the same lot. She noted that the Beverly Conservation Land Trust and the Conservation Commission must approve any changes to the easement. If an alternative location is proposed and accepted by those entities, it would have to go before the Planning Board for Modification of Subdivision. Zambernardi reminded the Board that the letter from the Open Space Committee is requesting that the Planning Board not release any bond or close out on the project until this matter is addressed. Thomson asked if it is their opinion that the landscaping there now was not of accidental nature. Zambernardi responded that she was told that landscapers did the landscaping unknowingly. She also stated that the house is under a Purchase and Sale Agreement now. The potential buyers of the lot are aware of the easement and the developer wants the easement to remain on the lot. Hutchinson asked what kind of landscaping is blocking the walking path. Matz responded that large plantings (mostly Arborvitaes) are there now. Matz also mentioned that the original walking easement path passes within 10 feet of the house looking into a window. The path also would require passing through the side yard into the back yard, which has a steep slope that makes it difficult to pass. Matz stated that it would require significant modifications to make it safe. The alternative route on the same lot takes you through riprap, up and over into the water retention basin, then up and out. Zambernardi stated that work is being done now to find a third alternative route for the walking easement and suggested that the Board wait for the third proposal to be presented but to uphold the request by the Open Space Committee not to release any bond or close Public Meeting Minutes — Planning Board April 26, 2011 Page 5 of 5 out on the project until they receive all proposals and the matter is sorted out. Members concur. b. Reschedule Regular September Meeting Date Zambernardi informed the Board that the upcoming September 20 Meeting needs to be rescheduled because the meeting date falls on the Primary Election and the Board couldn't hold any hearings on that day. After a brief discussion, the Planning Board agreed that the Regular Meeting be rescheduled to September 13, 2011. c. Request to Set Public Hearings: Dinkin stated that there is a request to set a Public Hearing date for Proposed Amendments to Open Space Residential Design (OSRD) Site Plan Ordinance Rules and Regulations - Revisions to Plan Requirements & Proposed Amendments to "Submission Requirements, Procedures & Supplemental Regulations" for Inclusionary Housing - Fee in Lieu of Creating Affordable Housing Units. Mack made a motion to set a Public Hearing for the Proposed Amendment to Open Space Residential Design (OSRD) Site Plan Ordinance Rules and Regulations on May 17, 2011 at 8:00 p.m. and to hold a Public Hearing for the Proposed Amendment to "Submission Requirements, Procedures & Supplemental Regulations" for Inclusionary Housing on May 17, 2011 at 8:30 p.m. Hutchinson seconded the motion. Motion carried 6 -0 -1 with the Chair abstaining. 5. Approval Of Minutes Minutes of the March 29, 2011 meeting held for corrections. Thomson made a motion to approve the minutes dated February 15, 2011. Mack seconded the motion. Motion carried 6 -0 -1 with the Chair abstaining. 6. Adiournment Thomson made a motion to adjourn the meeting at 8:21p.m. Mack seconded the motion. Motion carried 6 -0 -1 with the Chair abstaining.