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2012-07-17 (2)CITY OF BEVERLY MASSACHUSETTS PUBLIC MEETING MINUTES BOARD OR COMMISSION SUBCOMMITTEE: DATE: LOCATION: MEMBERS PRESENT: MEMBERS ABSENT OTHERS PRESENT: RECORDER: Planning Board July 17, 2012 Council Chambers, City Hall, 3 rd Floor Chairperson Richard Dinkin, Vice Chairperson John Thomson, Ellen Flannery, Charles Harris, Ellen Hutchinson, David Mack, James Matz, Michael O'Brien John Mullady Assistant Planning Director Leah Zambernardi Leah Zambernardi & Eileen Sacco Chairperson Dinkin called the meeting to order at 7:30 p.m. Subdivision Approval Not Required Plans (SANR's) a. 32 Brackenbury Lane — Lodge Family Trust Thomson recused himself from voting on this petition. Mr. John Lodge presented the plan to divide 32 Brackenbury Lane into two building lots. Zambernardi confirmed the plan meets the Board's requirements for endorsement as a SANK. Mack: made a motion to endorse the SANR as submitted. Motion seconded by Flannery. Motion carried 6 -0 -1 (Flannery, Harris, Hutchinson, Mack, Matz & O'Brien in favor) (no one in opposition) (Thomson in abstention). Reschedule Regular September Meeting Date The Board decided to meet Tuesday, September 11, 2012, 7:30 p.m. at the Beverly Senior Center. Request to Set Public Hearing Date — Special Permit #132 -12 — Northwest Parking Deck Cummings Center — Beverly Commerce Park, LLP Flannery recused herself from voting on this petition. Mr. Steve Drohosky was present and requested that the Planning Board set a public hearing date on this request. Regular Meeting Beverly Planning Board July 17, 2012 Page 2 of 22 Mack made a motion to set the Public Hearing for September 11, 2012 at 8 p.m. Motion seconded by Hutchinson. Motion carried 6 -0 -1 (Thomson, Harris, Hutchinson, Mack, Matz & O'Brien in favor) (no one in opposition) (Flannery in abstention). Request for Minor Modification to Site Plan Review Application #107 -12 — Northwest Parking Deck - Cummings Center — Beverly Commerce Park, LLP Flannery and Matz recused themselves from voting on this petition. Mr. Steve Drohosky stated that the Cummings Center received site plan approval at the last meeting to allow the construction of the northwest parking deck at the Cummings Center. The applicant has requested approval of a minor modification to the site plan to allow changes to the architectural design. Mr. Drohosky presented a plan showing the changes that was submitted with the request and answered questions from Board members. Mack made a motion that the modifications to the plans are minor in nature. Motion seconded by Hutchinson. Motion carried 6 -0 -2 (Thomson, Harris, Hutchinson, Mack, Mullady & O'Brien in favor) (no one in opposition) (Matz and Flannery in abstention). Mack made a motion to approve the proposed minor modifications to the plans as submitted. Motion seconded by Hutchinson. Motion carried 5 -0 -2 (Thomson, Harris, Hutchinson, Mack & O'Brien in favor) (no one in opposition) (Matz and Flannery in abstention). New or Other Business Request for Minor Modifications to Site Plan Review Application #106 -12 and Special Permit #130 -12 — 79 -81 Rantoul Street — Enterprise Apartments — Rantoul Enterprise Realty Trust Ms. Miranda Gooding, Glovsky & Glovsky, 8 Washington Street spoke on behalf of the petitioner. She stated she was requesting a minor modification to the site plan and special permit approvals to allow for changes to the site plan and elevation plans related to the roof deck and balconies, the grade of the sidewalk at the garage opening, the addition of a transformer vault and reconfiguration of a parking space, the trash room and elimination of the mechanical room to accommodate it. Ms. Gooding presented a plan showing the changes that was submitted with the request and answered questions from Board members. Harris made a motion that the Planning Board find the proposed modifications to be minor in nature. Motion seconded by Thomson. Motion carried 6 -0 -1 (Thomson, Flannery, Harris, Hutchinson, Mack, & O'Brien in favor) (no one in opposition) (Matz in abstention). 2 Regular Meeting Beverly Planning Board July 17, 2012 Page 3 of 22 Mack made a motion to approve the proposed modifications as requested. Motion seconded by Thomson. Motion carried 6 -0 -1 (Thomson, Flannery, Harris, Hutchinson, Mack, & O'Brien in favor) (no one in opposition) (Matz in abstention). Recess for Executive Session to Discuss Litigation Dinkin stated the Board was going to recess at this time to conduct an Executive Session to discuss litigation. He stated the Board would reconvene its regular meeting immediately following the Executive Session. The Board then took a roll call vote of the Members to enter Executive Session. Dinkin reconvened the regular meeting of the Planning Board at 8:05 p.m. Harris made a motion to recess the regular meeting and begin the scheduled public hearing. Motion seconded by Hutchinson. Motion carried 7 -0 -1 (Thomson, Flannery, Harris, Hutchinson, Mack, Matz & O'Brien in favor) (no one in opposition)(Matz in abstention). Public Hearing — Request for 2nd Modification to 875 Hale Street Definitive Subdivision Plan & Request to Deem 2nd Modification to 875 Hale Street Definitive Subdivision Plan Substitute Yield Plan under the OSRD Filing — 875 Hale Street - Montrose School Park, LLC; and Public Hearing - Petition for the Rescission of the Planning Board's approvals of the OSRD Plan dated June 29, 2011 and the Definitive Subdivision Plan dated July 27, 2011 - 875 and 875 V2 Hale Street — D. Pasguarello, BDLWT &G, PC Matz recused himself at this time. Atty. Brad Latham, 643 Main Street, Reading, Massachusetts and Mr. Jeff Rhuda were present on behalf of Montrose School Park LLC. Latham addresses the Board and notes that he is the attorney for the applicant owner as to this sub - division. He explains that they are here under remand from the land court and they have filed with the Board a six -lot subdivision plan, a minor subdivision plan. He explains that this plan is filed in response and to address the issues that relate to prior proceedings from this Board. Latham explains that there are six lots shown on the plan, Lots One through Six. He explains that lot number six, however, does not have its access on Road A, the new roadway. He also explains that lot 6 has its access on Hale Street. He also notes that there are the proper number of counting of lots that would access on to this, so it would qualify as a minor street. Latham explains that the plan has been changed to draw back the length of the street to conform to the definition that was established by this Board at your last public hearing on this, so it does not exceed the maximum road length to its terminus point. And it would be -- since it is a minor 3 Regular Meeting Beverly Planning Board July 17, 2012 Page 4 of 22 subdivision, it would be inherent and required by covenant that the maintenance of the road, water, sewer and so forth remain private and a sign, Private Way, would be placed there. Latham notes that the turn - around shown on the plans are the same configuration that's been approved by this Board in other cases, and was approved earlier by virtue of the initial approval on this plan. Latham explains that there are certain waivers that were requested and they are noted on the plan He also stated that they ask that those waivers that were granted at the May 15th session be granted in this case, as well. He noted that the circumstances have not changed and the reason for the waiver is the same as it was then. Latham explained the requested waivers as follows: • one was not to require that trees six inches in caliper be shown, and that's, we know, a common waiver. • that the street address numbers not be shown. The city engineer assigns those after the fact. • Location of proposed streetlights, none are proposed. The city electrician did not have a problem with that. • Fire alarm systems not to be shown. The city electrician approved it without that. No fire alarms are being used or built now. • a waiver that the drain pipes have not three feet maximum cover, city engineers approved that. And it's a greater class, a stronger Class Five pipe, a concrete drain pipe that's being used. So that's the list of waivers. Latham reiterated that, the street length has been changed to conform to the Board's definition of street length. He noted that members have communications in their packets Board of Health, City Engineer, Police and Fire; all having passed judgment on this and not having any out - standing problems. He noted that by virtue of the change in the road configuration and the houses, there is a reduction of something over a thousand square feet of impervious area as a consequence of the plan changes. Latham noted that the Board has been through this project many times and they know what the project is. He quoted from the subdivision control law that says: It is the intention of the subdivision control law that any plan filed with the Planning Board should receive the approval of such Board if such plan conforms and the recommendations of the Board of Health, and to reasonable rules and regulations of the Planning Board pertaining to the sub - division of land. He stated that they think that they have done so and respectfully request that the Board approve the plan that has been submitted. Dinkin notes this is a combined public hearing, and requests that the legal notice be read. M Regular Meeting Beverly Planning Board July 17, 2012 Page 5 of 22 Dinkin noted that although this is a combined public hearing, he would like to keep the issues separate, and requested that the Board discuss the proposed definitive, close that discussion, and then move on to the rescission. There was no objection to that request. Zambernardi reads the legal notice. Dinkin asks for questions from the Board at this time. Thomson asks if this particular configuration has been vetted by the Fire Department, and if they approved it? Latham states yes, that's correct and notes that there is a memo line that's in there. Zambernardi asks if this request also involves the OSRD Yield Plan. Latham states yes and notes that in his letter, and obviously he didn't want to request it now it in terms of this hearing. He also explains that they requested that that the Board accept, if they approve of this plan and also accept this as a substitute yield plan in the OSRD. He noted that was indicated in his letter. Dinkin asks if there is anyone else presenting this evening on this matter. Latham indicated that there was no one else presenting for them. Dinkin opens the public hearing up for public comment at this time. Daniel Pasquarello of Brennan Dain, 129 South Street, Boston, Mass. addresses the Board and states that he represent the Lewises, the Lymans, the Galls, the Browns, and Mr. Grant ( "the neighbors "). Pasquarello states that they oppose this second requested modification of the definitive plan. He stated that first and foremost, this is still not a minor subdivision and despite what you just heard about the access to Lot Six with the driveway on Hale Street, there is neither any legal nor physical impediment to actual access from the subdivision road, which means that you still have access to seven lots in this subdivision, not six, which takes it out of the definition of a minor subdivision. Pasquarello states that there has been no talk of any sort of deed restriction, any sort of legal condition, and any sort of physical impediment that would prevent access to the road. And as the owner of an abutting lot that is shown on this plan that creates the subdivision road, this owner of Lot Six, whoever it might be, would have the right to access. Pasquarello explains that they think that there are also other problems presented by how this new design is laid out. He notes in particular, the access issue on Hale Street with the driveway to Lot Six and the access from the subdivision road on to Hale Street are located approximately five Regular Meeting Beverly Planning Board July 17, 2012 Page 6 of 22 feet of each other, which present some interesting traffic issues. He also noted that secondly, if you take a look at the lots that are laid out, lot three on the Second Proposed Modification lacks sufficient frontage, which makes it not a buildable lot, and if you look at the frontage that's being counted, it actually goes around a right angle. He also noted that under the zoning ordinance, how frontage is actually defined here, is not an appropriate way to measure frontage. So if you actually follow the definition of how frontage is calculated, you come up with something short of the hundred feet that's required. He noted that there is not only an issue with lot seven, there is also a lack of sufficient frontage on Lot Three. Pasquarello stated that probably the most important aspect here is that this is a requested minor subdivision, which means that all of the relief being sought is entirely discretionary and up to the Board's discretion. He stated that it is not mandatory for the Board to approve this for two reasons. One, the Board never has to approve a minor subdivision if it doesn't feel like it wants to relax the requirements and second, the turn - around that is proposed here, the hammerhead, is a non- cul -de -sac turn - around. He noted that the sub - division rules and regulations make clear that any non- cul -de -sac turn - around is subject to acceptability by the Board. So, should the Board not accept the proposed turn - around, it need not approve this plan. There is certainly no requirement to accept the turn - around. He noted that there was previously a hammerhead turn- around proposed. That was different noting that it was a larger hammerhead. Pasquarello states that he believes that was a hundred and seven feet wide. The currently proposed hammerhead is now eighty -six feet wide, with the minimum turning radius required by the Fire Department being eighty -two feet. So you have a much tighter squeeze than you previously had. Pasquarello states that the rules and regulations for minor subdivision require cul -de -sacs be a one hundred foot right of way diameter. And indeed, for major -- if you are not in the minor subdivision area, if you're looking at the rules for major streets, it's even greater than that. It's a hundred foot roadway diameter, a hundred and twenty foot property diameter noting none of which are met here. Pasquarello states that the Board is very familiar with this proposed subdivision, and that the envelope is still being pushed. He notes that this sub - division was previously represented to the Board as a minor sub - division that required no waivers and that is obviously not the case, noting that since Montrose came back, has request waivers and they did so in the first request for modification that the Board unanimously rejected back in May. He explained that the road length here still appears to be over two hundred and forty feet, and so while it is less than the two hundred and fifty feet, they are still pushing the boundaries or getting close to the boundaries of this roadway and there is still a hammerhead, not a cul -de -sac. Pasquarello explained that there is now a frontage issue with Lot Three. He explains that there is a very interesting design with Lot Two, which appears to have a reverse rat -tail design to it. He questions that, since this is discretionary and up to the Board's approval and not mandatory, why hasn't Montrose come back after the last hearing with a plan if it either does not require waivers or that it would be in accordance with the standing rules and regulations. Pasquarello states that for all of these reasons, we urge the Board deny the second requested modification. Regular Meeting Beverly Planning Board July 17, 2012 Page 7 of 22 Pasquarello stated that the Board should not treat this as a substitute yield plan. He noted that what Montrose is trying to do here is to put the cart before the horse, so to speak. He noted that and part of the reason why the Board should not do this is the very reason why the OSRD plan should be revoked. He noted that as a result of the Board's last finding that the previously proposed road length was in excess of two hundred and fifty feet and therefore, they had a major sub - division. He states that there was never a valid yield plan in front of the Board previously. He explains that to be a valid yield plan, any waivers that are required, have to be in place at the time of the OSRD process and that is not the case here. He notes that if this were granted, one would still lack the necessary waivers. Pasquarello stated that for these reasons the Board should not accept this as a substitute yield plan. Dinkin asks if the Board members have any questions at this time. Mack referred to the turn - around, and questioned other than the fact that we would have the authority of deeming the turn - around as far as being adequate. On what basis will we have to determine that it is inadequate because the Fire Department says it is adequate? Pasquarello states that it is up to the Planning Board's discretion to either accept or reject the proposed turn - around because they're seeking minor subdivision treatment here, and it is not a cul -de -sac. Again, it would be a different case if this were a cul -de -sac measured to be less than two hundred and fifty feet because with the cul -de -sac, obviously, there's a requirement that they meet a certain diameter. And here, once they have gone outside the cul -de- sac condition, it's completely within the Board's discretion as to whether to accept or not. So what this ties into is Montrose previously coming before the Board and saying that they had a right to six lots for the subdivision and therefore, saying they're entitled to a yield plan with six lots because they had a conventional six lots and therefore, you get an OSRD with six lots. Now, if the Planning Board were to hold them to the requirements that, let's say they put in a cul -de -sac here, or if you don't grant the waivers and you don't treat this as a minor subdivision, we don't believe that they could put a six -lot plan in front of you for appeal plan purposes. Mack states that assuming that whatever barriers to finding that this is a minor can be overcome by the applicant, and given the past practice of the Board, can you tell us why a minor is not appropriate for this location? Pasquarello stated that right now, they haven't been able to meet that. To allow a minor subdivision requires the satisfaction of certain prerequisites. If those prerequisites are not met, then you don't get into the minor subdivision area here. We still have a major problem, which is the access to seven lots. We don't think that that can be -- and it certainly hasn't been overcome yet. So we're not in minor subdivision territory. Pasquarello stated that the obvious answer is that there are too many lots on this particular subdivision. This is not an as of right six lot development. 7 Regular Meeting Beverly Planning Board July 17, 2012 Page 8 of 22 Thomson asks if that was not true during the first modification? Pasquarello states yes and explains that if that was also the case, there was still access to seven lots the last time. He states that he does not believe the Board reached that issue because it didn't need to reach that issue because it determined that it was a major sub - division as a result of the two hundred and ninety two foot plus roadway. Thomson notes that he was not talking about the modification he was talking about the original approval of the plan. I'm sorry. Not the modification. I'm talking about the original approval of the plan? Thomson questions if the Board, in their decision for the applicant limited access for one of those lots? Pasquarello states that in the definitive, the original approved definitive there was access to all six proposed lots off the sub - division road. And there was also access to the abutting Barry lot off the subdivision road so there was access to seven lots. Thomson clarifies there is nothing in the Board's decision or in the applicant's procedural statements stating that the access would not be gained from Lot Six to the roadway. Dinkin asks for additional comments from those present. Jeff Rhuda addresses the Board and refers to page three on the plan, and points out that there's a note prohibiting access from Lot Six. Zambernardi clarified that is on their modification requested plan, not on the original definitive plan. Rhuda stated that is correct. Jeff Rhuda addresses the Board and explains that the Board asked us to do that at the last meeting, so the plan you have in front of you has that note on the plan. This was discussed at length at the last meeting, and the Board requested us to put that on the plan, so we've done it. Latham addresses the Board again and states that as Rhuda has indicated, there is a note on the plan that does restrict access from Lot Six. He noted that if this Board were inclined to include a condition in its action that there must be a legally enforceable document prohibiting access, they would have no problem with that whatsoever because that's the intention. He also noted that there was a comment made that the driveway on Lot Six on to Hale is five feet from the roadway. He explained that the actual distance, pavement to pavement, is forty feet, and that was reviewed by the City Engineer, the Police Department, and the Fire Department. He also noted that there is also a problem with the sight distance as a consequence and if you look at the Regular Meeting Beverly Planning Board July 17, 2012 Page 9 of 22 front of the plan, near Hale Street there are sight easements imposed along there that actually improve the sight distance in the area. Latham addressed the comment that Lot Three lacked sufficient frontage. The T is the same street. It's Road A. So it is -- you can aggregate the frontage it's on. He explained that if it were two different streets, that would be a different situation, but he contends, in fact, aggregate, the zoning by -law does not prohibit that at all, and we agree that it's discretionary within this Board. Latham addressed the question regarding allowing a minor subdivision. He noted that it is because it's good land planning, and this is a perfect site for that sort of use. He also noted that the waivers were requested and granted before and the only one rejected was the road length, and they have addressed that. Dinkin asks Zambernardi to read letters of comment from City Boards and Commissions at this time. Zambernardi read the following letters from city departments, copies of which are included in the record. Dated July 12, 2012 from Amy Maxner, Environmental Planner. Dated July 11, 2012, from William T. Burke, Director of Public Health. Dated July 2, 2012 from William Fiore, Beverly Fire Prevention. E -mail dated July 11 from Eric Barber, City Engineer. Sergeant Russ Rollins has informed the Planning Department he has no further comment. Dinkin asks for questions and comments from the Board at this time. Thomson asks Zambernardi if the Building Inspector has looked at this frontage question on lot three Zambernardi explained that she has discussed the frontage question with him, during the first appeal and it was determined that the frontage is measured along the street line. She noted that she does not have a written opinion but that is the consensus. Thomson noted that the Building Inspector could have sent us a letter saying we shouldn't approve this. Thomson also asked, on the minor sub - division, does the ordinance say that only subdivisions with six lots or less may be considered as minors, or is it more discretionary for the Planning Department? Zambernardi stated that they looked at this question today. Dinkin declares the in recess until 8:35 p.m. E Regular Meeting Beverly Planning Board July 17, 2012 Page 10 of 22 Dinkin calls the Public hearing on 875 Hale Street to order at 8:35 p.m. Dinkin calls on Pasquarello to comment on the rescission of the definitive subdivision plan approval of July 2012. Pasquarello addresses the Board and explains that they have submitted a request for rescission of the definitive subdivision plan approval from July of 2011, and a revocation or a rescission of the OSRD plan approval of June of 2011. He noted that they had originally placed this in a letter that the Board has requested, which they submitted on May 7th. He noted that as a result of the Board's unanimous finding at the May 15th hearing that the proposed subdivision road on the definitive subdivision plan was in excess of two hundred and fifty feet, the Board found it two hundred and ninety two feet; and, therefore, found that it was not a minor subdivision but a major subdivision, and thereafter unanimously denied the first modification. He noted that the definitive sub - division plan in the first modification with respect to the road were identical, as represented by Montrose, and the definitive and the OSRD plan with respect to the road were also identical. Pasquarello stated that for the reason that the Board found that the layout on the first modification exceeded two hundred and fifty feet and therefore it was not a minor subdivision, that applies equally to the definitive plan that was approved last year. So given the Board's finding and the previous inaccurate representations from the applicant that the definitive was a waiver -less minor sub - division, when in fact it's been found that it is not, the neighbors submit that the definitive approval should be rescinded. He noted that even though the modification was denied, you still have the approved definitive plan that is sitting out there with a two hundred and ninety two foot road that is technically approved right now as a minor subdivision. He reiterated that, for the same reasons as denial of the first modification, the definitive subdivision approval should follow and be rescinded and in sequence, the definitive subdivision plan was used as the basis for the yield plan for the OSRD approval. He stated that the applicant came in and said that they were entitled with a waiver -less subdivision to put six lots on this particular parcel. And as a result, that was the basis for the yield plan. Pasquarello explained that the OSRD, however, requires that, quote, all "waivers" must be sought and obtained during the OSRD process, but prior to acceptance of the yield plan, and in this case, the yield plan that was accepted for the OSRD was accepted before the waivers were requested. Therefore, you did not have a valid yield plan for that OSRD approval, and the OSRD should be revoked. He explained that it's not just waivers from this Planning Board of the sub - division rules and regulations and noted that if waivers from any other agencies are required; for example, from the Conservation Commission, they also must have been obtained prior to acceptance of the yield plan. He stressed that required waivers were lacking, the yield plan was not proper and not valid, and the OSRD should be revoked. Pasquarello explained that this ties us back into the question as to whether the proposed second modification should be deemed a substitute yield plan. He explained that the conditions he described with respect to the OSRD approval in the first yield plan apply equally to this second 10 Regular Meeting Beverly Planning Board July 17, 2012 Page 11 of 22 proposed modification. He stated that not all waivers are in place, and approval of the second modification, should the Board decide to do that, would run into the same issue. Pasquarello stated that they ask that the Board rescind the definitive sub - division plan approval, revoke the OSRD plan approval from June of 2011, and not approve the second modification of the substitute yield plan. Dinkin asks Latham if he has a response. Latham addresses the Board and states that the first comment that he would like to reply to is the statement of inaccurate representation, and that relates to the road length issue. He stated that a lot of people looked at this plan over the process of months, including the City Engineer, Project Engineer and others and he thinks there was a question of how the City would construe how one would calculate the road length. He stated that there was an honest difference of opinion in that regard and he thinks that has been addressed by what's before the Board tonight. He stated that Counsel for the abutters commented on the fact, the section in the ordinance that states that one must obtain prior to the OSRD process, waivers, and that would be waivers in this case from the Conservation Commission. He noted that they were, in fact, obtained, noting that an Order of Conditions was issued and the Board has a file in which the Conservation Commission expressly waived the very provision that applied to the need for waivers under the wetland ordinance of the City of Beverly. Latham stated that it is true that the plan has changed. He noted that during the discussion as to the definitive plan to reduce the impervious area and that has a positive impact and not a negative impact with reference to wetland issues. He explained that for that reason, they had sought that this Board accept the plan before you tonight as a substitute yield plan, noting that a waiver was required so they obtained a waiver when we had to obtain it. He also noted that they believe now that they have satisfied that condition. Latham stated that it seems that if one is trying to go forward and preserve an OSRD and be creative in the development and use of it, striking down a yield plan is probably not the appropriate way to do that. And our hope is then as you know, the Symes family has built almost three hundred houses in this city; has gone through the approval process. They've been here for twenty -five years; have never been in a situation of litigation where the City is on the other side. And this only happened in this case because the neighbors appealed your approval of the OSRD. Latham stated that they ask that the Board hopefully give that OSRD a second day. The applicant would love to go forward with the OSRD. We wouldn't spend all the time and money to go through all the hearings, spend all of your time had they not really wanted the OSRD. So we ask you to approve a substitution of the current subdivision plan as a yield plan to let that process continue. Pasquarello asked to quickly address a few points. 11 Regular Meeting Beverly Planning Board July 17, 2012 Page 12 of 22 Dinkin recognizes Pasquarello. Pasquarello addresses the Board again and states that with respect to the Conservation Commission, what he heard when the correspondence was read in that July 10th letter was that the Conservation Commission has held that the changed plan there and modification requires formal review. He noted that it is not as simple as saying there's less impervious area now and therefore, it's a positive and not a negative. The conditions have changed. The impervious area location has changed, and that is a determination to be made by the Conservation Commission and that that requires formal review, that there will be a further hearing with the Conservation Commission. He states that he does not think it's accurate to say that any waivers required from the Conservation Commission are already in place with respect to this. Pasquarello also stated that it is worth noting, a comment about the litigation history here. He explained that it is true that the neighbors did file an appeal of the OSRD approval. There is also a second lawsuit in this case followed by Montrose with a facial challenge to the OSRD regulation as it stands, so there are there are multiple things moving on the litigation front. He noted that if Montrose is willing to go through the OSRD process, then they submit that the proper procedure here is to submit a yield plan with the proper maximum number of lots, and not try to shoehorn in six lots where they otherwise could not have six lots without these particular waivers. Pasquarello requested to make one final point. He stated that if there is consideration here of another yield plan being approved or substituted, the original definitive approval carried with it a condition that the OSRD applied and suggested that the Board follow that same procedure. Latham stated that because of the remand, this really is an open session on the OSRD that the abutters have brought a petition asking that that be considered. He noted that they want revocation. We've asked for substitution of the yield plan, and it's been remanded from the courts, noting that this really is a continuation of the OSRD in that context. So the timing is not inappropriate. He noted that if however the Board is inclined to continue that, we can make application to the Conservation Commission under the wetland ordinance and let them make their decision. He stated that they are very optimistic that they're going to find that the waivers were granted, and what's been done doesn't change that at all. Dinkin asks if there are questions from the members of the Board. Thomson asks if application to Conservation Commission has been made Latham states that it has not. Dinkin states that he thinks the Board is done. Thomson moves to close the concurrent public hearings. Hutchinson seconds the motion. The motion carries (8 -0) 12 Regular Meeting Beverly Planning Board July 17, 2012 Page 13 of 22 Dinkin declares the concurrent public hearings closed. Dinkin addresses Latham and Rhuda and states that he thinks they have some business with the Conservation Commission before we can take your matter up entirely. So I am going to ask for a motion to lay your matter on the table until the next meeting of the Planning Board on September 11, 2012. Rhuda questions if this for the rescission or the definitive. Dinkin states that he wants to look at them all together. Rhuda states they are not going to file for the definitive. Dinkin clarifies that they are not going to file for the definitive and asks what was the public hearing that we just held. Rhuda states that it was for the definitive, and they do not have to file with the Conservation Commission, so there is no reason for them to file. He explains that all they are going to do is open up an amended order of conditions for appeal, and put it on file. He states that for the definitive subdivision, there is no reason for them to file. Dinkin states that is what the Board wants to see. A member of the audience questions how do we know that there isn't a change being made that will affect the existing order of conditions that would require some sort of action by the Conservation Commission Latham explains that the Board wants the applicant to pursue a process with the Conservation Commission, which he believes would be seeking a minor modification as to the waiver issue. Thomson notes that in the first go- around the applicant went before the ConCom, and they gave them an order of conditions or a statement of some kind that they would approve the plan. Dinkin states that the Board wants to see any process that results in the Con Com telling us they're still happy. Dinkin asks for a motion to lay the matter on the table. Thomson moves to table the matter to September 11, 2012. Dinkin asks if there is a second on the motion. Zambernardi noted that the hearing is closed. Dinkin agrees that the hearing is closed. Thomson states that the Board needs an extension of the time to issue a decision. Zambernardi clarifies that is for the rescission. She notes that for the second modification, the actual decision deadline is September 11th. 13 Regular Meeting Beverly Planning Board July 17, 2012 Page 14 of 22 Latham states that it was their intention to go to the Conservation Commission was to satisfy that, in fact, the waivers that were obtained for the yield plan are still in place; that they're still satisfactory. Discussion ensues regarding extension the time frame for the approvals and possible meeting dates. Dinkin noted that the Board does not meet in August. The next meeting of the Board is September 11, 2012. Rhuda states that he would agree to an extension to September 17, 2012. Dinkin asks for a motion to lay 875 Hale Street on the table until September l I th Mack moved to lay 875 Hale Street on the table until September 11, 2012. Hutchinson seconds the motion. The motion passes. The meeting reconvened to continue the public hearing on Dodge Street. Continued Concurrent Public Hearings — Site Plan Review Application #105 -11 and Special Permit Application #129 -11— Walgreens Pharmacy — 48 Dodge Street — Westward Orchards Limited Partnership Matz recused himself. Dinkin states that this is a continued public hearing and asks the applicant if they have any additional information to offer. Atty. Alexander addresses the Board and explains the changes that have been made to the plan since the last meeting. Thomson asks if they have satisfied the concerns of the Parking and Traffic Commission. Atty. Alexander states that they have agreed to conditions 1 -7 with 1 -6 being part of the construction of the project and noted that #7 is a monitoring condition for post construction. Harris notes that traffic is of concern to him and noted that the site is small and used the analogy of putting a size 12 foot into a size 9 shoe. He questions why they are proposing this project for this site. Atty. Alexander states that this is a project that is 100% in keeping with the zoning for the site. He noted that the city has been looking for businesses such as this through the underlying zoning. He also noted that this type of business relies on drive by traffic and they do not think that traffic will be as much of an impact as is anticipated by some. 14 Regular Meeting Beverly Planning Board July 17, 2012 Page 15 of 22 Flannery questions how far down the island on the site will start. The project engineer explains the location of the island and the circulation of the site. Jeff Dirk the Traffic Consultant addresses the Board and explains the reconfiguration of the site and notes that the only difference is the reconfiguration of the parking lot. He noted the intent of the island and the function of it. He stated that there are no changes in the number of curb cuts on the site. He also noted that the Dodge Street entrance will be an entrance only site and the other side will be exit only. Dirk explained the differences between their proposal and the City's traffic consultant's proposal for the site. He explained that in order to accomplish the consultant's plan they would have to eliminate the landscaping and the wrought iron fence along the street. Dan Mills of MDM Transportation addresses the Board. Dinkin recesses the hearing until 9:03 p.m. Continued Concurrent Public Hearings — Special Permit Application #131 -12 Site Plan Review Application #108 -12 and Inclusionary Housing Application #04 -12 — Construct Three -Story Building Containing 13 Apartments with Commercial Space on the First Floor — 130 Cabot Street — Cabot Street Apartments — 130 Cabot Street LLC c/o The Halloran Companies Thomson moves to waive reading of the legal notice. Mack seconds the motion and it carries. Dinkin recesses this hearing until 9:30 p.m. Continued Concurrent Public Hearings — Site Plan Review Application #105 -11 and Special Permit Application #129 -11— Walmens Pharmacy — 48 Dodge Street — Westward Orchards Limited Partnership Dinkin re- opened the hearing at 9:03 p.m. and asked for public comment at this time. Richard Benevento, Chairman of the Beverly Parking and Traffic Commission addressed the Board and stated that the PTC reviewed the proposal and made a recommendation to the Planning Board with seven recommendations. He noted that the Parking and Traffic Commission has some experts on the Commission noting that the Vice Chair William Bent is a retired traffic engineer for the Commonwealth of Massachusetts and he himself owns a traffic consulting business. Benevento stated that the main concern of the PTC was to get the traffic off of route IA, noting that they considered on and offsite circulation of vehicles and potential parking and circulation conflicts with the existing uses, noting Dunkin Donuts and other businesses abutting the site. Benevento reviewed the seven recommended conditions for approval as follows: 15 Regular Meeting Beverly Planning Board July 17, 2012 Page 16 of 22 1. That countdown pedestrian signals be installed at the adjacent signalized intersection serving Conant/Dodge Street (Route IA) and the North Beverly Plaza; 2. That the applicant repair and /or replace any non - functioning traffic signal equipment including the pedestrian push button along the easterly side of Dodge Street at the intersection with Conant Street; 3. That the applicant evaluate the use of concurrent pedestrian phasing for select crossings in order to reduce the signal's cycle length; 4. That the developer develop optimal signal timing and sequencing plans for peak and off - peak periods to reduce the signals cycle length; 5. That the developer adjust the timing of existing traffic signals at both locations identified above as my be needed to optimize vehicle movements; 6. That the developer prepare an access plan that accommodates expects vehicle queues, reduces on -site conflicts and restricts entering movements from the Route 128 southbound ramp and shall make diligent improvements shown on the plan which was submitted to the Commission on May 10, 2012; that is the northbound Route 128 ramp at Dodge Street and shall be striped to visually "narrow down" the travel lane on the ramp and a "No Left Turn" sign shall be installed at the base of the ramp. the applicant shall either perform these improvements at its own expense or shall provide written verification from MassDOT that the agency refuses to allow the work to be performed; and 7. That the developer provide a traffic review /monitoring program to be reviewed by the city though its Parking and Traffic Commission to review traffic operations both six (6) months and twelve (12) months after the occupancy permit is issued for the Walgreen's facility, and that the developer shall be required to provide reasonable on -site and /or off - site mitigation measures to correct operational deficiencies. Depending on the results /findings of the review /monitoring program, mitigation measures could include, but are not limited to traffic signal timing adjustments, revised striping, installation and /or removal of signage and other similar work Douglas Dobin of 56 Dodge Street addressed the Board and expressed concern about adding additional traffic to an already busy area. He noted that Dunkin Donuts already blocks traffic in the morning almost to the bridge and there is an incredible amount of congestion for many blocks. He urged the Planning Board to vote against this proposal. Dinkin recessed the hearing until 10:30 p.m. at this time. Continued Concurrent Public Hearings — Special Permit Application #131 -12 Site Plan Review Application #108 -12 and Inclusionary Housing Application #04 -12 — Construct Three -Story Building Containing 13 Apartments with Commercial Space on the First Floor — 130 Cabot Street — Cabot Street Apartments — 130 Cabot Street LLC c/o The Halloran Companies Atty. Thomas Alexander of 1 School Street, Beverly, MA. addresses the Board and explains the proposed project for 130 Cabot Street. He explained that zoning allows for the use of nearby 16 Regular Meeting Beverly Planning Board July 17, 2012 Page 17 of 22 municipal parking and they are proposing to use the lots between Washington and Franklin Streets. He provided photos of the lot taken during the summer months and noted that the lot is presently under - utilized. Alexander explained that they have reconfigured the parking area in response to concerns of the Parking and Traffic Commission. Dinkin asks if the handicapped parking space proposed for the building is accessible. Alexander stated that the space is accessible via a curb cut and ramp. He also noted that improvements to the ramp in the front of the building may be needed at the request of the City Engineer. Alexander reported that they have met with the Fire Department and the Parking and Traffic Commission and have agreed to their recommendations. Alexander stated that they recognize that some folks in the area have problems with the development, but noted that there is a good amount of support for the project as well. He presented the Board with a petition signed by 47 people in the community that are either business owners or residents of the downtown. Alexander also presented a letter from Beverly Main Streets and City Council President and owner of Super Sub Paul Guanci supporting the project. Alexander explained that the impact on the downtown aligns with the goals of the downtown, noting that this is an important development for this stretch of Cabot Street and has the potential to revive Cabot Street. He also noted that the developer did a similar project in Salem at the CF Tompkins building and showed photographs of the site. He noted that they did an impressive job with the building and it was a catalyst for that section of Essex Street in Salem. He further noted that the project was the recipient of a historic preservation award from Historic Salem Inc. Jim McDowell of Eastern Land Survey addressed the Board and explained the changes that they have made to the configuration of the proposed parking area. He explained that they originally proposed 11 spaces in the back and 3 spaces parallel on Vestry Street. He stated that they have reconfigured the parking so that they now have 13 spaces in the back and 1 handicapped space which is on Vestry Street. McDowell also explained that they may rebuild a section of the sidewalk to improve the ramp on Washington Street if necessary at the request of Mr. Barber. Alexander introduced the Landscape Architect for the project, Matt Urlich to review the landscaping plans for the site. Urlich addressed the Board and reviewed the landscaping plans for the site. He reported that they are proposing to install planting areas on the left and right side of the building and explains the proposed plantings and the locations of them. He also stated that they are proposing to install street trees along Vestry Street. 17 Regular Meeting Beverly Planning Board July 17, 2012 Page 18 of 22 Stephen Drohsky the Architect for the project with offices in the Cummings Center in Beverly addressed the Board and explained that the proposed mixed use site will be slab on grade with 13 residential units on the second and third floor and commercial tenants on the first floor which could be one tenant or the space could be divided into two or three spaces. Drohsky explained that the second and third floors will have 6 residential units per floor which will be one and two bedrooms. He also noted that there will be one handicapped unit on the first floor along with the commercial space. He explained the proposed siding and color scheme proposed for the building. Dinkin asked for comments from the members of the Planning Board at this time. Thomson questioned what the lighting plan for the parking area is. McDowell stated that they are proposing to light the parking area with building mounted lights that should not effect the neighbors. Thomson questioned the drainage for the roof runoff on the site. McDowell explained that there will be a catch basin at the back of the lot and roof runoff and drainage from the parking area will go to the catch basin and out to the storm drain on Cabot Street. Dinkin questioned how many of the signatures submitted on the petition are from abutters to the site. Alexander reviewed the addresses noting that some of them are from further down Cabot Street but there are a lot of people in the community who are supporting the project. He noted that there are people from the area supporting this, but most of the support is from local business people. Dinkin opens the hearing up for public comment at this time. A resident of 144 Cabot Street addressed the Board and submitted comments and photographs of the area for the consideration of the Board. She expressed concern about emergency vehicle access and the possibility of delivery trucks coming to the site. She also expressed concern about the width of Vestry Street and the ability to accommodate fire and delivery trucks. She stated that this scenario will provide a bigger influx of traffic in an area where there is limited parking. She questioned how it is legal to allow this in the area with all of the concerns. Dinkin explains that the developer is not responsible for conditions that exist off of his property. He also noted that the law provides for the use of municipal lots and it is not something that the Planning Board can change. Dana Acchiavatti, 4 Elm Street addressed the Board and questions what they will do with snow and trash removal on the site. McDowell states that they plan to remove snow from the site. Regular Meeting Beverly Planning Board July 17, 2012 Page 19 of 22 Dale Acchiavatti of 4 Elm Street addressed the Board and expressed concern about roof drainage going to Cabot Street and questioned if the state would allow that. Dinkin explained that the state does not control that issue it is a city issue and they allow it. Dinkin stated that the Board is aware of the preexisting conditions on the site and will take them into consideration. He noted that the city ordinance allows the applicant to count city parking toward the number of available parking spaces, noting that the merits of which are not up to the Planning Board. He noted that maybe that should be looked at but it is not up to the Planning Board. Alexander noted that Lt. Bill Fiore of the Fire Department has reviewed this project for the Fire Department and as a member of the Parking and Traffic Commission and the fire department and the Parking and Traffic Commission have both recommended approval. A resident of 17 Vestry Street addressed the Board and expressed concern about additional landscaping on Vestry Street. She also asked if the safety rail that is presently on the street will remain. McDowell stated that the landscaping will not affect the street scape and the safety rail will be removed. She expressed concern about the proposed street trees noting that she is also concerned about traffic flow and the lights from the parking area shining into her home. McDowell stated that the lights will be shielded so not to cause a glare for residents. He offered to bring a sample of the lighting for the review of the Board. Rose Maglio of 30 Pleasant Street addressed the Board and expressed her concern about the screening of the HVAC units on the building and the access to the handicapped parking space on Vestry Street. McDowell stated that there is a five -foot walkway for a total of 50 feet for access to the handicapped parking and they are proposing a fence for the HVAC unit to block the noise and view. Dinkin asked for a motion to continue the concurrent public hearings to September 11, 2012 at the Beverly Senior Center, if the applicant is willing to give the Board a waiver. Alexander agreed to the waiver and signed as such. Thomson moved to continue concurrent public hearings for 130 Cabot Street to September 11, 2012 at the Beverly Senior Center. Flannery seconded the motion. The motion carried. Continued Concurrent Public Hearings — Site Plan Review Application #105 -11 and Special Permit Application #129 -11— Walmens Pharmacy — 48 Dodge Street — Westward Orchards Limited Partnership Dinkins reconvened the public hearing for 48 Dodge Street at this time. Dinkins opened the hearing up for public comment again. 19 Regular Meeting Beverly Planning Board July 17, 2012 Page 20 of 22 Richard Benevento addressed the Board and stated that the Parking and Traffic Commission would like all conditions 1 -6 completed before an occupancy permit is granted. Rose Maglio of 30 Pleasant Street addressed the Board and expressed her concern about the amount of pervious and impervious surface on the site. A resident of 5 Pond Street addressed the Board and expressed concern about increased traffic in the area. Cheryl Oliphant of 2 Chipman Street addressed the Board and stated that she is a direct abutter to the site. She expressed concern with the noise from the HVAC units and requested they install an insulated fence to reduce noise. She also stated that she is excited about the proposed landscaping plan. There being no further questions or comments regarding this matter, Dinkin declared the Public Hearings closed. Dinkin called the Regular Meeting of the Beverly Planning Board back to order. Discussion/Decision - Site Plan Review Application #105 -11 and Special Permit Application #129 -11 — Walmens Pharmacy — 48 Dodge Street — Westward Orchards Limited Partnership Thomson addressed the Board and stated that he is prepared to move to issue a decision n this matter, noting that the Board has gotten as far as it is going to get in concessions on this matter. Thomson moved that the Planning Board grant the Site Plan Review and Special Permit for Site Plan Review Application #105 -11 and Special Permit Application #129 -11 — Walgreen Pharmacy — 48 Dodge Street — Westward Orchards Limited Partnership, and that the recommendations of the Beverly Parking and Traffic Commission be incorporated as follows: 1. The owner or his successors in title shall adhere to the communications and comments within the following letters received into the record from municipal department heads and boards and commissions in connection with this filing, which are attached hereto and incorporated herein by reference: letter dated 6 -11 -12 from the Board of Health; letters dated 6 -14 -12 & 1 -12 -12 from the Engineering Department; letter dated 6 -6 -12 from the Fire Department; and the letter dated 5- 4-12 from the Design Review Board. 2. The owner or his successors in title shall adhere fully to the communications and comments in a letter received from the Parking and Traffic Commission dated 5 -11 -12 and entered into the record, which is attached hereto and incorporated herein by reference, and shall further provide to the Parking and Traffic Commission the following provisions and modifications to the 5 -11- 12 letter as requested by the Parking and Traffic Commission during the July 17, 2012 Board meeting: 20 Regular Meeting Beverly Planning Board July 17, 2012 Page 21 of 22 To requirement No. 4: That the developer provide time space diagrams as part of the development of the optimal signal timing and sequencing plan and that the analysis and recommended timing changes be submitted to the Parking and Traffic Commission for review and approval. That all work, construction costs, State permits, fees or other requirements associated with modifications to the MassDOT Traffic Control Agreement or Traffic Signal Permit for work at either location or along the Route IA corridor that may be affected by the developer's offsite improvements shall be the responsibility of the developer. That all deliverables for the requirements as set forth in the 5 -11 -12 letter and all parking and traffic mitigation measures be submitted to the Parking and Traffic Commission for review and approval. That an occupancy permit NOT be issued until all offsite traffic mitigation improvements are complete and operational and that all of the requirements of the Parking Traffic Commission have been satisfied and approved with the exception of Requirement No. 7 which shall be completed six months and 12 months after the occupancy permit is issued. 3. That the City -owned lot to the rear and adjoining this property shall be improved as described by the applicant with a berm and landscaping, subject to securing appropriate City approvals. 4. That there shall be an 8 -foot high fence installed at the rear of property. 5. That the hours of operation shall be limited to between the hours of 7:00 a. m. and 10:00 p.m. Should the owner or his successors in title wish to expand the hours of operation, he may come back to the Board for review and approval no earlier than 2 years from the date of this approval. 6. That trash removal shall occur no later than 10:00 p.m. and no earlier than 8:00 a. m. 7. That the owner or his successors in title shall adhere to the recommendations and commitments in the attached letters from Jeffrey S. Dirk of Vanasse & Associates, Inc. dated 7- 10-12 and 7 -3 -12, as they were verbally approved by Daniel J. Mills of MDM at the July 17, 2012 Board meeting. This condition is made with the exception that the modifications to the Dodge Street driveway design involving the extension of a raised island along the north side of the driveway, that were suggested by Mr. Mills of MDM in his correspondence to the Board and during the July 10, 2012 Parking and Traffic Commission meeting and the July 17, 2012 Board meeting, are not required at this point in time. The Board and the Parking and Traffic Commission retains jurisdiction that if in the future the City becomes aware of particular problems with traffic entering and exiting the Dodge Street driveway, the applicant shall be required to go back to discuss a reconfiguration of this driveway design. 21 Regular Meeting Beverly Planning Board July 17, 2012 Page 22 of 22 8. That the HVAC noise levels be maintained through a proper maintenance schedule of the HVAC equipment so it is not allowed to deteriorate and increase from initial noise levels. revised striping, installation and /or removal of signage and other similar work Flannery seconded the motion. The motion carried (6 -1 -0) with the Chair voting in favor. Harris was opposed. Matz joined the meeting at this time. Approval of Meeting Minutes: March 20, 2012 and April 26, 2012 Meetings Thomson made a motion to approve the regular meeting minutes presented subject to one edit on April 26, 2012 minutes. Motion seconded by Flannery. Motion carried 8.0.0. Adjournment Thomson made a motion to adjourn the meeting at 11:00 p.m. Motion seconded by Hutchinson. Motion carried 8.0.0. 22