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2012-01-03CITY OF BEVERLY MASSACHUSETTS SPECIAL MEETING MINUTES BOARD OR COMMISSION: SUBCOMMITTEE: DATE: LOCATION: Planning Board Tuesday, January 3, 2012 Council Chamber, City Hall, third floor MEMBERS PRESENT: Chairman Richard Dinkin, Vice Chairman John Thomson, Michael O'Brien, Charles Harris, Ellen Hutchinson, Ellen Flannery, David Mack, James Matz MEMBERS ABSENT: None OTHERS PRESENT: Assistant Planning Director, Leah Zambernardi RECORDER: Diana Ribreau Dinkin called the Special Meeting of Beverly Planning Board to order at 7:30 p.m. Harris made a motion to recess the Special Meeting and call the Public Hearing to order. Motion seconded by Flannery. Public Hearing — Modification to Wellington Hills Definitive Subdivision Plan (a.k.a. Oak Hill Estates & Wellington Heights) — Pamela J. VanTwuyver Zambernardi read the public notice for the record. Attorney Wood gave a brief description of the ongoing proposal to date, which included the request for a waiver of the Owner signature as a procedural issue. Wood stated that under the Subdivision Control Law he did not believe it was a requirement but he requested a waiver of the requirement for an owner signature and later decided to withdraw the application. Last summer, they approached the original developer of Oak Heights who viewed that they remained the owner of the stub. This past year, his client purchased the said "stub" and the documentation to such is on record with the Registry of Deeds. The Applicant applied for a modification to the subdivision plan this past fall as both Applicant and Owner for this application. Wood stated he continues to argue that the request is for a simple paving plan. Part of the requirement of the Subdivision Rules and Regulations is that all access to adjoining property should be connected. The Definitive Subdivision Plans were approved by the Planning Board back in 1986. However, the developer at that time requested a waiver so they would not have to pave this portion of the public way and the Planning Board granted that waiver. Wood stated that this "stub" is the only portion of the approved public roadway infrastructure in the entire Wellington Heights Subdivision, which was never physically constructed and not accepted as a public way legally by the City Council. All Regular Meeting Beverly Planning Board January 3, 2012 Page 2 of 9 other public ways were approved and accepted by the City back in 1995. Wood stated that the paving plan proposed is half the width of the public way and the layout of the paving plans are based on discussions that go back 3 years ago with the Beverly DPW office. Wood stated his client is seeking, as owner and legal abutter to the public way, that the Beverly Planning Board approve the plans to allow access to the proposed 5 structure, 6 -unit, Cluster Open Space Development project approved over a year ago by the Wenham Planning Board. Randy Burley from Mill River Engineering of Gloucester gave a brief representation of the proposed paving plans including drainage. He stated that a discussion was had with the City Engineer several years ago requesting 24 -foot wide pavement as opposed to the 32 -feet required, which they believe, is a project that fits in with the entire Wellington Heights development. Thomson inquired about utilities for the site. Burley responded. Thomson then asked Burley if there is any documentation in writing from the Engineering Department. Burley responded that there might possibly be email correspondence. Mack asked if drainage calculations were completed. Burley responded yes, drainage was reviewed at their expense by Weston and Sampson Engineering. Harris asked if utilities on the Beverly side would be underground. Burley responded yes. Thomson stated that he feels the procedure in Wenham is a unique one with a subdivision that is entirely in another jurisdiction with access from Beverly. Thomson asked if notice was given in the Wenham proceeding to the City of Beverly and if anyone spoke on behalf of the City of Beverly at the meeting. Wood replied that there was email notification as well as phone calls between the Planning Office and both municipalities involved. There were 8 -10 hearings in Wenham and they were in contact with the Beverly DPW and the Planning Office. Wood continued to say that hearings were attended by a small interested group of Beverly citizens, two of which are the direct abutters, who stated their opposition. Thomson asked Wood what efforts were made by the Applicant to obtain access other than from Beverly. Wood responded that it was reviewed from a legal and environmental perspective and reviewed carefully by the Wenham Planning Board, the Planning Director, and Town Counsel as well as their environmental engineering consultants. It was determined that there is no other viable legal access to this property. Wood stated that there was significant discussion on how to minimize any impact, visual or otherwise, to the direct abutters. Wood added that the Beverly Conservation Commission did play a role in the subdivision review process raising issues pertaining to a small isolated wetland area adjacent to the Beverly side. Although the wetland area discussed is not in Wenham's jurisdiction, it was agreed upon that lawns and any development outside of the 100 ft. buffer would include plans for a full vegetative buffer installed along all three or four adjacent properties on the southern side of the development. Wood concluded that an active effort went into the design of the roadway infrastructure to include a similar design to the other cul -de -sacs within Wellington Heights. Regular Meeting Beverly Planning Board January 3, 2012 Page 3 of 9 Thomson expressed concern about the required 50 ft. buffer zone that was waived down to 25 ft. along the town line by the Wenham Planning Board. Wood stated that he couldn't confirm or deny the exact details on the processes of the Wenham Planning Board but the extensive vegetative buffer provided importance minimizing the impact. Further, Wood stated that only 1 of the 5 structures is close to the Beverly line. Thomson stated that if he were an abutter to the proposed subdivision, it would catch his attention and he would want to know details of any screened improvements in direct relation to an abutter's home. Thomson followed up asking if the buffer zone was waived to 25 -feet because the developer is trying to cluster development and to avoid further development to the east. Wood agreed that it was a design effort to cluster the development. Thomson asked if there was any opposition to the waiver from anyone at the meetings. Wood responded that there was opposition by the two direct abutters in all ways. Thomson asked Wood if in his view, the said stub was not legally accepted by the City. Wood responded that it is impossible for a municipality to accept a public way unless the way has been constructed. Wood stated that his view has remained that it is a public way because there is an easement in favor of the City of Beverly, and that there is nothing different in this request that is any different than any other subdivision. At this time, Dinkin opened the meeting up to questions and comments from the Public. Mayor William Scanlon, 5 Whitman Place, Beverly, stated that it is rare for him to appear before any Beverly Board or Committee. However, he stands in strong opposition for an approval to the proposed housing development located in Wenham that would be accessed solely from Beverly. Mayor Scanlon stated he understands that regional thinking and affordable housing are generally desirable goals but the construction in Wenham would place the bulk of public safety responsibility on Beverly while imperiling Beverly's water supply and is completely unacceptable. Scanlon stated that the irony is Wenham has an internal Subdivision Law that has never been waived before as stated in their Bylaws; that all subdivsions, wholly or partially, must be reached from a way in Wenham. A letter approving the project from the Wenham Planning Board accepts, as fact, an agreement between the two communities that was never discussed with Beverly officials and indeed does not exist. If it were suggested, he feels that Beverly would have had no interest in signing any agreement. Scanlon gave a scenario that if the boundaries between the two communities were shifted slightly so that the site would be located in Beverly, then on its face, the project would be in violation to Beverly's Watershed Protection Overlay District and would be ineligible for approval. Scanlon said that should we accept a project that violates Wenham's own rules, poses potential threats to Beverly's own water supply, and places extensive burden on taxpayers and public safety resources due to its plans for sole access from Beverly, is totally unacceptable. He urged the Beverly Planning Board and others to deny the Application. Greg Lee, 8 Deer Haven Road, stated that he is a member and one of the leaders of the Beverly Oak Hill Committee that was developed over the past few months in order to protect the neighborhood and City from the proposed Wenham development project. Members of the Regular Meeting Beverly Planning Board January 3, 2012 Page 4 of 9 Committee have been working hard over the past several months to prevent any outside development, as they believe it hurts neighborhoods and the City as a whole. Lee asked for a show of hands for those present from Oak Hill, further asking for a show of hands of those that oppose the project before them. Lee stated that it is clear that they are strongly united in the opposition to the outside development project. Thomson asked for a show of hands of those from Oak Hill that are in favor of the project. There was no one in favor. Lee continued to say that Tina Cassidy, City Planning Director, can attest that she received 110 emails from those in opposition to the project a couple of months ago. Lee asked that the referred emails be made part of the record if they are not already. Lee continued on addressing the standard when considering waiver requests. Lee stated that his research to minutes of record from previous meetings have continually stressed that a waiver must only be granted if it is in the public interest, results in a tangible benefit to the City, and is consistent with the goals of the subdivision rules and regulations. Lee raised the question if the City of Beverly is better off with the waiver granted and the project built than without the project built at all. Lee submitted the Committee's findings that there is no benefit to the City of Beverly only that it is a great deal for the Town of Wenham. Wenham granted a number of waiver requests for this project and feels strongly that Wenham would not have agreed to them if it affected other Wenham residents. The clustered subdivision project will negatively impact home prices in the Beverly neighborhood over the years and at the very least, home values will not appreciate, likely resulting in lower tax revenues for the City from within their neighborhood. Lee added that the project hurts all residents of Beverly not just Oak Hill residents and any shortfalls would have to be made up from other Beverly citizens. Lee concluded by urging the Planning Board to deny the application for a waiver request. Norman Tarr, 6 Old Town Road, stated that he attended most of the meetings in Wenham and wanted to express his disappointment at the level of listening the Wenham Board gave to those Beverly citizens that attended. Tarr stated that he understands there are many rules and regulations to protect neighborhoods, however the Town of Wenham granted 19 waivers for this particular development that has no access from Wenham and no Wenham abutters, with the majority of impact being to Beverly residents. Tarr questioned the hardship that allowed for a waiver of the 50 ft. buffer zone. Tarr mentioned that the Wenham Planning Board allowed Beverly residents a chance to speak but did not support any one of their concerns or opposition. Tarr discussed his own property and the impact the development would have for him. Tarr went on to say that part of having flexible development is to keep with the existing character of surrounding properties and the desire to eliminate impact to abutters. Tarr continued to say that the site has been land - locked for a long time. He discussed some of the waivers granted by the Town of Wenham which he feels only benefits Wenham. Tarr concluded by asking the Beverly Planning Board to please turn this down. Dinkin requested clarification on Tarr's remarks about a "parking lot ". Tarr explained that because one of the homes is a Duplex, it is a double driveway, which looks like a parking lot. Jane Gordon, 15 Old Rubbly Road, Beverly, said that she too attended several meetings in Wenham and questions why the Developer didn't come to Beverly first before going to Wenham. In the meetings attended, she never once heard the discussion from Wenham how it would affect Regular Meeting Beverly Planning Board January 3, 2012 Page 5 of 9 Beverly or its residents only on how great it is and benefits Wenham when in fact the development would be destroying wetlands, there are no services provided to those residents, no sidewalks nor would there be a safety passage to our neighborhood. Gordon urged the Planning Board to consider her points and not allow them to destroy her neighborhood. Larry Maver, 16 Ancient Rubbly Way, stated that he was concerned that if the development were approved, Wenham could choose to add additional development back there. There is no control in what the future impact would be. He asked how the Beverly Planning Board could rule on this development without considering the larger scope of what development can be done there. Ed Cahill, 14 Ancient Rubbly Way, stated that he understands there is another parcel of 7 acres owned by GAB Realty trust in Wenham. He stated that although they are not an applicant here, they are a co- applicant before the Wenham Planning Board. If they were to build something there it would affect traffic, services etc. He stated that he is concerned that if the Planning Board approves the request, we will not have any further say to any other development that would be opened up because of this road. He encouraged that the Planning Board require other property owners on the other side of the Beverly line, submit their plans for your approval or file a covenant as to how many properties they plan to build. Lana Balach, 3 Old Town Road, stated she is a resident of Beverly for a second time. She supports the City and schools. They are committed to preserving quality of life here. She stated she has a concern over the safety to children. She stated there would be an increase of traffic with deliveries, construction trucks and private busing. She noted her concerns about the hill in the area. She stated that allowing this project could open up development for another 7 acre parcel and that would create an even more dangerous situation. She stated the closest Wenham road to this development is one mile away. She stated that Wenham would never allow this to happen if the tables where turned. She described difficulty she had with the project engineer. She asked the Board not to let this project happen. She stated that we don't benefit in any way. Joel Gordon, 15 Old Rubbly Road, agrees with all that has been said. He stated that the project would produce considerable traffic. He stated that the construction would hinder the neighborhood because of the time it will take to finish. He stated that the safety of children in the neighborhood is a concern. He stated his fear that many other houses will be built on the left hand side of the property. He stated that right now it is a quiet peaceful neighborhood and he would like it to stay that way. Geraldine Griffin, 14 Old Rubbly Road, stated she would like to address two points: the proposed new 4 -way intersection; and the width of the paving for the stub. She referred to the Beverly Subdivision Rules and Regulations, which require safe vehicular traffic. She stated that the neighborhood would be forever changed. She stated that if approved, it would be the only 4- way intersection approved in a Beverly subdivision. Pertaining to traffic, there is no way they can know what will happen to the 7 -acre parcel, which is frightening. She stated that an increase in traffic would occur and the two roads that meet at the four -way intersection are in a downward slope. She referred to the width of road being proposed, noting that the entire neighborhood has 30 -foot wide streets with sidewalks. She referred to previous minutes of the Planning Board, Regular Meeting Beverly Planning Board January 3, 2012 Page 6 of 9 noting discussion in 2000 of the Board over the Hawk Hill subdivision. She stated that width and lack of sidewalks is a concern. She has two young children. Children will most likely live in the development — posing even more risk. She stated that 24 -foot pavement with no sidewalks does not fit in with the rest of their neighborhood. She referred to private service vehicles noting that if it is a difficult winter, traveling on the road as a 3 -way intersection is difficult enough. She stated that Roundy Estates recourse would be to widen the road and to add sidewalks. She stated that if this occurred, the road would narrow at the town line from 32 -feet to 22 -feet. She stated that the road should be the same width in Beverly and in Wenham. She then asked that the application be denied. Richard Cunio, 4 Old Town Road, stated he is a direct abutter to the development. He stated it is a "win win" situation in Wenham. He doesn't see how the project would benefit the Beverly neighbors or the City. He commented that property values would drop. He stated there are already depressions in the road and the road is crumbling. He stated there are environmental issues noting that the runoff goes to the Miles River and that the supply is in danger. He stated that septic systems would be added now, and possibly more later. He asked that the Board seriously consider the impact to Beverly. Matt Adams, 12 Ancient Rubbly Way, stated he moved with 4 young children to this location 2 years ago. He stated he was attracted to the neighborhood because it was safe. He stated that a 4 -way intersection is concerning for them and he thinks it would be a significant detriment to the neighborhood. He stated that it is not fair for children and owners to suffer for the benefit of Wenham. Mike Cahill, 28 Foster Drive, stated he is opposed to this development for reasons that have been stated. He stated there is an affordable housing component to this proposal. He stated there is clearly a need for affordable housing in Wenham. He stated there should be an effort to site affordable housing near downtown, with ready access to public transit and other services. He stated that no such services would be accessible to the residents of the affordable unit. Michelle Mastin, 19 Old Town Road, agreed with what had already been said. She stated that this project would set a bad precedent to the City of Beverly. She stated that approving this proposal opens the door to other developments and developers to take short cuts to seek access to undevelopable property in their towns to come thru the City of Beverly. She stated that should this Board approve access, Beverly loses all control over what happens next. She stated that Wenham would collect all tax benefits and would further meet affordable housing at the cost of Beverly citizens and she urges the Beverly Planning Board not to grant the application. Gina Harrison, 12 Dearhaven Road, stated that her prior home was damaged as a result of construction going on for a project up the street from her. She requested that if the Board does approved the project, that it require that surveys be done on all nearby homes and that the Board back them up if damage is done to their homes during construction. She asked if the Board could protect them if something is damaged. Regular Meeting Beverly Planning Board January 3, 2012 Page 7 of 9 Carolyn Richardson, 4 Arrow Head Lane, stated that the closest Wenham road is 1 mile away. This project would be isolated from Wenham. She cautioned the Board about the precedence this project would set. Elizabeth DiMao, 12 Dearhaven Road stated she is concerned about damage to the roads. She concurred with other comments made in opposition. She stated that the installation of underground utilities, cables and electricity would tear up their roads. She stated that Wenham should have to pay for the cost of repairs needed for the road. She asked that the application be denied. Darlene DeCoursey, 2 Old Town Road, stated she is a direct abutter. She asked if there are assurances that the Planning Board can make to prevent a half finished or an abandoned project. She stated that most prospective buyers would steer clear due to the lack of frontage, no municipal services, no school bus pickup and no postal service. John O'Donell, 5 Ancient Rubbly Way, stated he moved to Beverly 26 yrs ago for the diverse City. He sent his children to school here and he invested in Beverly. He moved to this neighborhood 16 years ago because it is safe for children and is a world -class community. He commented that the developer was dismissive about their concerns. He stated the developer has represented that they are simply proposing to pave 112 -feet of road. He disagreed and questioned why the original builder didn't pave the road. He stated that part of the original promise was for a close community and safe community. He stated that should be respected because that is the basis on which the families bought their homes and came together to make this community. He stated that Old Rubbly Road, when first built, was at traffic capacity for this community. To open up Old Rubbly Road further would take away from the safety of children. He asked that the Beverly Planning Board represent the people of this community and represent the values of Beverly. He stated that Wenham has advocated those values because it is at no cost to them. Jim DeCoursey, 2 Old Town Road, requested that the Planning Board deny the request for a waiver to create a 1799 -foot dead end street in violation of Beverly's Subdivision Rules and Regulations. He stated the road is 3 times the permitted length. He stated it would be 260% longer than 500 ft. He referred to the Board's December 21, 2004 minutes regarding Folger Avenue. He stated that Mr. Dinkin commented that he was trying to remember any time the Board allowed beyond a 55% extension. Mr. DeCoursey stated that the road is 24 -feet wide for the first 133 feet and 22 -feet wide for the final 250 feet. He stated that the 1800 -foot measurement doesn't take into account that the end of the cul de sac is only 16 -feet wide. He stated that by far the longest dead end waiver requested since 1988 was Fox Hill Court. He doesn't know of any waivers granted to allow a dead end road near as long as this and he requested that the Planning Board deny the request. Tim Liporto, 2 Old Rubbly Road, commented on fire safety in the neighborhood. He referred to the maximum length of a minor roadway, which shall be no longer than 250 ft. from an intersection with an adjacent road. He stated that there was 320 feet for the proposed. He stated that was 71 -feet longer than allowed. He also referred to the 24 -foot wide road, which narrowed to 22 -feet wide. He stated that the rule is 32 -feet wide. He stated that the previous winter saw Regular Meeting Beverly Planning Board January 3, 2012 Page 8 of 9 challenging navigation to how emergency vehicles would maneuver down increasingly narrow areas. He stated there is an increased probability of fire getting out of hand and homes are only 100 -feet away from Beverly homes and he feels Beverly homes would be in danger. He urged that the Planning Board deny the request. He stated that the project does not meet the Planning Board's regulations. Tom Foley, 14 Old Rubbly Road, stated he is a lawyer and he looked closely at the request for a waiver of the 500 -foot rule for dead end streets. He stated he looked through all the minutes since 1995 and for projects since 1988. He refers to the case Federline vs. City of Beverly and stated it is the leading case on the dead end rule in Massachusetts. Mass Courts have sided with the Planning Board. He stated that the Planning Board has denied a waiver request 9 times and those roads all had shorter lengths than this road. He asked why the developer should be entitled to this waiver. He stated that most of the dead end road is in Beverly and the last 399 -feet is narrow. He discussed how the street does not comply with the subdivision standards. He stated that if this project was entirely in Beverly, and had nothing to do with Wenham, the Board would deny the project. He stated that he did legal research and the developers that have tried to argue in those cases against road waivers, the courts have routinely rejected that argument. He also addressed the rule about measuring a dead end street and he stated that the road should be measured to Essex Street, which is the nearest through street. He stated that the Planning Board has jurisdiction to deny the request for a waiver and there are court cases to back that up. He stated the Board should be concerned with the safety aspect, noting that the last 399 -feet of it is extremely narrow. He stated that what they are building is a minor street, a private road. He noted the definition of a minor street and said they would not even qualify as a minor street with 22 -feet for the last 400 -feet of pavement. He stated that there is a safety concern if there is a fire. He asked the Board not to give preferential treatment to this developer and offered to answer questions the Board may have. Tim Liporto, 2 Old Rubbly Road, stated he lived in Beverly for 57 years. 32 of those years were on Old Rubbly Road. He submitted pictures of the end of Old Town Road and stated that it has not has been cared for for many years. He discussed the Hathaway Avenue connection. He asked the Planning Board to bring the Fire Department to the neighborhood regardless to see what happens when they try to turn a fire truck around. John Singerland, 5 Sunday Drive, commented in opposition to the project. He stated he is a lawyer, and that there have been no facts presented as to why Beverly would want to burden its residents to allow this subdivision to go in. Paul Gould, 10 Old Town Road, stated his concern that in the mortgage business and slow economy, another bankruptcy could occur. A resident asks about the Board's procedures for the public hearing. Chairperson Dinkin stated that once the hearing is closed there would be no other public input. The resident noted that the developer would have access to the Planning Board. Dinkin stated that the developer may not present new evidence but yes, negotiation and compromise might occur. Regular Meeting Beverly Planning Board January 3, 2012 Page 9 of 9 Zambernardi read letters from City Department Heads for the record: January 3, 2012 — Mark Ray Chief of Police, Beverly December 28, 2011 — William Burke, Director - Board of Health December 28, 2011 - Eric Barber, PE City Engineer December 19, 2011 - William Fiore, Beverly Fire Prevention December 27, 2011 - Chief Paul Cotter, Beverly Fire Department December 19, 2011 - Sargent Russ Rollins, Beverly Police Department /traffic and safety officer A resident asked a question relative to the minor subdivision requirements of 250 -ft in length, noting the developer has not requested a waiver for that. Dinkin stated that the package of waivers they have requested covers all instances that would be required for minor street rules. Mr. Wood stated that he received some of the City's correspondence today. He asked if he could have the opportunity to respond to them in writing. Mack stated he thought that was fair. Thomson: Motion to keep public hearing open until the next meeting. Flannery seconded the motion. Discussion by the Board Memebers ensued. Mr. Wood stated he is happy to work with the Planning Board for an orderly process. He has no intention to introduce any further additional material. He is looking to comment on public documents. Thomson: Motion to withdraw the motion to keep the public hearing open. Flannery seconded the motion and it carried. Thomson: Motion to close the public hearing. Flannery seconded the motion and it carried 6 -1 (Thomson, Flannery, Harris, Hutchinson, Mack and O'Brien in favor) (Matz in opposition). Dinkin called the special meeting of the Planning Board to order. Dinkin stated that the Board would wait to get a written response from Mr. Wood, to review in advance of the next regular meeting on January 17, 2012. The meeting then adjourned.