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07-18-2017 BPB MinutesBeverly Planning Board Meeting Minutes July 18, 2017 CITY OF BEVERLY PUBLIC MEETING MINUTES Board: Planning Board Meeting Date: July 18, 2017 Location: Beverly City Hall, City Council Chambers Members Present Chair John Thomson, Vice -Chair Ellen Hutchinson (arrived 7:13), Catherine Barrett, Ned Barrett (arrived 7:13), Zane Craft, Ellen Flannery, David Mack, James Matz Members Absent: Wayne Miller Others Present: Director of Planning Aaron Clausen, Assistant Planning Director Darlene Wynne Recorder: Samantha Johanson, Recording Secretary Chair John Thomson calls the meeting to order at 7:05 p.m. Subdivision Approval Not Required Plans Mr. Orestes Brown, 726 Hale Street, owner of Lot A and Lot B. Brown is looking to transfer an approximately 1,000 sf area (Parcel C) from Lot B to Lot A to make the lot more conforming because he is renovating all of his properties. He tells them that Lot B remains conforming and has sufficient frontage for Lot B, but Lot A is pre- existing non - conforming for frontage. Brown points out the driveway that provides access for both houses, and that the garage is being eliminated from the property. Mack asks if the plan needs to show the access. Thomson answers he doesn't think it needs to show the access as long as they know it exists. Thomson asks Brown if each lot has their own access directly from Hale Street and Brown indicates that they do. Thomson notes the location of the fire hydrant. Thomson states that the areas are already conforming except for the setbacks and frontage which are non - conforming. Mack: Motion to endorse the plan as Subdivision Approval Not Required. Flannery seconds. The motion passes (6 -0). Open Space Residential Design Site Plan (OSRD) & Definitive Plan — Cove Village — 3 Village Lane - Request for Minor Modification — Charles Lukens Thomson introduces the application. N. Barrett arrives. Matz indicates that he can fairly and impartially act on the matter. Hutchinson arrives. Charles Lukens, 3 Village Lane, indicates he is looking to reduce the permitted setback on his OSRD lot as shown on the plans for placement of a shed. He explains the area in which he wants to put the shed is optimum for both himself and neighbors and doesn't interfere with drainage. He mentions the adjacent house that shares part of the yard triangle that he has pointed out on the plan has no windows on the side in which he wants to place the shed and therefore will not impact their views. Thomson asks Lukens to indicate what exists. Lukens answers that his house Beverly Planning Board Meeting Minutes July 18, 2017 has been built but that the shed has not been constructed, He notes the shed will sit inside the lot by 1 foot, so the request is for 4 feet and would have a 4x4 section with gravel around the shed. Thomson asks the Board if they have any questions. Matz asks if he has gotten any feedback from the neighbors. Lukens explains that there are sales pending on houses on both sides of his property. He notes that he has had the area staked out while the properties have been marketed and that it is clear what is intended. Thomson asks Lukens how many houses are in the cul -de -sac. Lukens answers there will be six houses, but there are currently seven in the HOA. Thompson asks if they are all similarly configured like his lot with open space behind them and Lukens tells him that they are. Thomson notes that this approval could set a precedence. N. Barrett asks if this is coming to the Board because of the OSRD plan. Thomson confirms that is the case and that they have the power with the OSRD to waive the dimensions required. N. Barrett asks if there is a property on the other side of his home. Lukens shows N. Barrett on the plan where there are existing homes. C. Barrett asks if the applicant has to go to the Zoning Board as well. Darlene Wynne explains that under the OSRD the Planning Board hears variations in the setbacks. Hutchinson asks if the applicant had the choice of going in front of Zoning Board or the Planning Board for approval. Wynne explains this is the only option because of how it is written in the ordinance. Mack acknowledges that part of the OSRD ordinance allows oddly shaped lots, and asks if the location of the proposed shed is a product of how they approved the OSRD plan. Lukens explains him that he is limited because of grading, aesthetically his recommendation would be the best option. Mack asks him about distance to open space and if it is any closer to his neighbors. Lukens explains that it is not and it is the furthest distance from his neighbor that he can possibly be and that it doesn't compromise the open space. Thompson explains to Mack that it is not a typical lot. Mack says he understands that it is 4 feet and it doesn't seem like it is going to affect anyone, but the question is if it meets the criteria of a variance. Wynne explains that it is really a Site Plan modification and the Planning Board doesn't have the authority to issue a variance. Mack: Motion to find that the site plan modification is minor in nature. C. Barrett seconds. The motion is approved (8 -0). Mack: Motion to approve the proposed modification to the OSRD Site Plan and Definitive Plan. C. Barrett seconds. 2 Beverly Planning Board Meeting Minutes July 18, 2017 N. Barrett states that they may see this again because of some of the interesting lot shapes that have been approved. He notes that the applicant chose the best location possible, that the lot has a unique shape, and there were grading concerns. He says they should review on a case -by -case basis and based on this case he believes this is an appropriate motion to consider. The motion passes (8 -0). Continued Public Hearing — Trask Lane Definitive Subdivision Plan — Elimination of Planning Board 1981 Approved Roadways, Shortening of Proposed Trask Lane and Combine Lots — Folly Hill Associates Trust Flannery: Motion to recess to Public Hearing regarding this matter. Hutchinson seconds. The motion passes (8 -0). Mack: Motion to waive the reading of the Public Notice. Hutchinson seconds. The motion passes (8 -0). Mr. Glovsky thanks the Board for the continuance from the June meeting and apologize for not being there in person. He explains that the City Engineer (Greg St. Louis) had provided a long list of items that needed discussion and that they weren't able to meet with him until June 13' He notes that Peter Ogren, Hayes Engineering, has responded to Mr. St. Louis with a list of items that would be included in the plan. He explains that the reason the items haven't been implemented into the plan yet is because it would be a very expensive plan and if the Board decided to make further modifications that they would have to go through the process all over again. He notes that Wynne has suggested in the possible list of conditions if the Board were to approve the plan it would be contingent on the plan being revised and it would include those items set forth in Mr. Ogren's letter to Mr. St. Louis. Glovsky explains that it is not a plan that creates new lots, nor new building opportunity. It is a plan that is part of a zoning freeze, and that the property remains subject to the former RSD zoning requirements. He wants to make sure that whatever happens to the Folly Hill property that it is beneficial to the City, the owners, and the neighbors. He tells them they have received a waiver list from the Planning Department and a list of suggested conditions. He tells them the conditions, for the most part, are acceptable and the applicant is willing to incorporate them into any approval of plan the Board may vote on. Glovsky brings up two conditions that are troublesome. He suggests that proposed condition #1 under the circumstances would constitute an unreasonable condition as they are not creating any additional building lots and that it is subject to the RSD zoning which allows for multiple buildings on one lot, and would undermine the benefit the owner has from the RSD zoning, by taking away what was bargained under the agreement the owner entered into with the City in 1971 with respect to the initial RSD zoning. Glovsky also states that the other condition they have an issue with is proposed condition #7 which provides that the application of future development should demonstrate there is adequate 3 Beverly Planning Board Meeting Minutes July 18, 2017 sewerage and water infrastructure consistent with Beverly Subdivision Regulations. He explains the 1971 agreement was entered into between the property owner and the City, and established the property owner agreed to pay the City $250,000, and the City agreed to supply water and sewer service to the property sufficient to support 1,400 dwelling units. The City also agreed to adopt the RSD zoning as is presently enforced, to encourage the development of high rise, high - density buildings on this isolated parcel of property. Subsequent to that agreement there were three projects that took place on Folly Hill which contain 554 dwelling units. Glovsky tells the Board that the City is responsible for providing adequate water and sewer capacity. For them to require this issue would violate the 1971 agreement with the City. Glovsky also suggests a minor change to proposed condition #3 which states the definitive subdivision plan contains a 200 -foot buffer which he interprets that as required by the RSD zoning, which is shown on the plan and that he can't modify it because it is part of the RSD zoning. He recommends it be modified by adding the word "the" before "RSD" if they adopt the condition. Glovsky states that besides those three conditions, the applicant agrees to the conditions recommended by the Planning Department. He lets the Board know that Ogren is present this evening to answer any questions. Thomson asks the Board if they have any questions. Mack asks does the City Solicitor agree with counsel's representation with regards to the obligations of the 1971 agreement relative to providing the water and sewerage to the 1,400 units. Aaron Clausen tells them that the City Solicitor's office has not reviewed the claim. He suggests that they could ask the Solicitor's office to opine on this; they would have to review the agreement in the context of its time. He believes that condition #7 is related to the actual subdivision regulations and requirements to ensure adequate utilities are sufficient to support development. He notes that if there is some requirement that the City must comply, he recommends that the applicant could come back to the Board for a modification. He notes the agreement is not connected to subdivision approval and that a discussion needs to take place between applicant and City. Thomson asks for clarification that as far as the Planning Department is concerned that condition #7 is not needed because they could come back at a later date. Clausen clarifies that in the agreement that Glovsky is referencing is outside the subdivision review and is a discussion that needs to happen between the applicant and the City. He says that they would argue that the condition be retained as it is one of the requirements of the Planning Board and related to safety and health and that the Board should be able to review that in the future. Thomson notes that the applicant seems to be objecting to the language "at the applicant's expense" and that they could consider removing that language. Clausen provides an example that if a development came through with 200 units, sewer and water lines would be required internal to the subdivision and that any needed extension of sewer lines, water lines, drainage within the subdivision would be at the applicant's expense. He adds the City is not on the hook to provide these utilities for a new building on the site. 4 Beverly Planning Board Meeting Minutes July 18, 2017 Glovsky respond that Clausen is correct and adds that the agreement provided to the City was to bring the capacity for the 1,400 units to the property line and that it is the property owner's responsibility to create the onsite infrastructure to support the improvements. He believes the condition could be acceptable if as Thomson explained either the language "at the applicant's expense" be deleted or they stay and add a comma after the word expense and say unless otherwise determined to the responsibility of an alternative third party. Thomson states that another option would be to discuss the improvements being made as only portions within the project. Glovsky states that would be acceptable. N. Barrett asks if they condition something that if there is a private agreement between the City with a developer that supersedes the Board's conditions and it is found that the agreement is binding then it's at the applicant's expense, but then if they subrogate the expense to the City that's a private agreement and he doesn't think that has much bearing on the conditions the Board sets forth. Thomson is unsure of the answer to that question but he could see the potential for a preexisting agreement being in conflict with what the Board may decide. N. Barrett states that he guesses it will depend if the 1971 agreement continues to be binding, but if it is determined the agreement is not binding the Board may have left it condition -less. Thomson indicates they have solved this question. Clausen explains that N. Barrett's point is why they are proposing this condition. He adds because this agreement was established in 1971 and there hasn't been a project put forth recently, the condition should be included to preserve the Planning Board's authority to require sufficient utilities to support future planning projects. Thomson asks staff to elaborate on condition #1. Clausen explains that because the applicant is looking to do a subdivision by combining two existing lots to create a new lot and reducing the roadway that was previously approved in 1981. He notes there isn't a project for the Planning Board to consider based on the number of units and whether there is adequate access, utilities, drainage, fire access, emergency access, etc. He explains that what the condition is saying is that since there is no plan for the Planning Board to actually consider, and once a project is proposed by a future applicant, the Planning Board has the ability to conduct site plan review under RSD, it would also have the opportunity to review conditions of adequate access and utilities consistent with Subdivision Regulations at that time. Glovsky states that the RSD zoning didn't require any particular frontage or specify roadways in the RSD District, noting it's a very hybrid, unusual zoning provision and the intention was there would be a lot of flexibility. He agrees that if they were going to subsequently create more lots it would be a new subdivision, but under these circumstances the Planning Board does have the authority under Site Plan Review to address all of those issues. He believes that is the only mechanism under these circumstances because they are not creating additional lots. He notes these issues weren't contemplated or included when the 1981 plan was reviewed and approved and he didn't want to go on record as acquiescing to this condition. Thomson says Glovsky's exception is noted. Mack asks because of the RSD zoning as applicable under the freeze, what triggers Site Plan Review by the Planning Board. Glovsky states the Site Plan Review triggers are as part of the zoning ordinance. Wynne provides that if they are over ten units or more than two townhouses or similar building type on a single lot would trigger Site Plan Review. She also adds that Section 5 Beverly Planning Board Meeting Minutes July 18, 2017 375 -6 says that not more than one building designed or available for use for dwelling purposes shall be erected or placed or converted to use as such on any lots in a subdivision or elsewhere in the City without consent of the Planning Board. Glovsky claims that the provision is contrary to the RSD zoning, which specifically was designed to allow multiple buildings on a lot and a significant density on a lot. He states the RSD zoning gives one thing and this proposed requirement for further subdivision review would take that away. Clausen explains that zoning and subdivision control are two different regulations and there is no question that the RSD provides a lot of flexibility with laying out a site, but he adds that doesn't mean that it does not need subdivision approval, and if subdivision approval is sought then there are automatic exemptions to meeting the rules and regulations of the Planning Board's subdivision regulations. He adds that while it does provide flexibility it does not say that the project is exempt from the subdivision review process. C. Barrett asks if it would be of any value for the Board to see the 1971 agreement. She also asks about the $250K payment Glovsky brought up and whether that is related to that agreement. Glovsky tells her that he has a copy of the agreement. Thomson explains that Clausen has stated it is not in their purview to look at it because whatever their opinion of it, it exists and it will be subject to future debate. Mack suggests that since both sides want to reserve their rights because of theoretical future development, that they may want to add language to conditions #1 and #7 that suggest that both sides can assert that, for example in #7, add, consistent with Beverly Subdivision Regulations or any applicable contract with the City, or in #1, they add, pursuant to the relevant section of the subdivision regulations to the extent applicable, etc., that way it is open to interpretation by the Planning Department, the abutter, the applicant reserves the right and at least they can potentially avoid unnecessary contention or appeal. Thomson said they will be adding to #7, to extent applicable. Clausen adds that he would recommend leaving out any language of a contract. Glovsky suggests that in addition to #1, unless precluded by other applicable authority. Thomson states he believes that "to the extent applicable" covers that. Thomson mentions that there are a lot of waivers before them and asks what the thought process is on asking the Board to approve the waivers while a plan could've avoided that. Peter Ogren, Hayes Engineering, answers they submitted a plan with waivers because of the nature of the plan that was already approved with a bunch of waivers that were debated by the Planning Board at the time such as sidewalks, trees, etc., and that it was to be a Planned Unit Development and would be subject to a Site Plan Review. He states when the subdivision regulations were written they were anticipating a typical subdivision and not one that eliminates streets that were previously approved. He mentions that Mr. St. Louis raised some issues about changing alignments, etc. which have changed over the years; Ogren said they could agree to those but they don't think it makes it a new subdivision. He adds, he thought the waivers that he originally submitted on his list were the ones required because of the plan format or because of the engineering information that was already available. As an example, he mentions he didn't see a need to do new test holes. 0 Beverly Planning Board Meeting Minutes July 18, 2017 Thomson indicates that he'd like to hear the City's viewpoint. He notes he would expect a freeze plan to be a clean, waiverless, as -of -right plan. He states he thinks they are looking at this as more of a modification, but in his opinion, it comes across as a brand -new subdivision plan. Wynne interjects that is how it was presented at a previous meeting. Glovsky states it was presented as a re- subdivision. Ogren says that is one of the questions if it's a new subdivision plan and if the City doesn't vote the waiver, they will have to address that issue and if the Board denies the waiver they will have the opportunity to correct the issue. Wynne confirms. Thomson says that is something they would like to think about and he would like to hear from the City which waivers are more customarily granted. Ogren says your perspective on the plan says what is or isn't a waiver. He was thinking about it as a modification of a definitive subdivision plan. He adds it is still a definitive subdivision plan, and the SCL says in order to modify, it needs to follow the same procedure as a definitive plan. He says they can either look at it fresh or if it's denied for those reasons, that they can agree to do what needs to be done and correct deficiencies. Clausen believes this is a new definitive subdivision application and it was not submitted as a modification and the applicant chose to submit it as a new definitive plan. He agrees the Board has authority to review it and require a waiverless plan, even though in 1981 the plan was submitted with waivers and now it is 36 years later in a different context. He states they offered condition #1 for Planning Board to consider because it was directly related to the waivers being requested. He extrapolates, the waivers were being requested because they've already been approved in the previous subdivision and there is not a new project to review in terms of access, number of units, utilities. So that if the Board were to consider granting of these waivers, this condition could be added so that at the time of a project in future, all of these elements could be considered in the context of an actual project. He adds as far as waivers, many of these the Board has occasionally approved in the past, such as street trees or street lighting, and that this can be looked at in the future in the context of an actual project. Thomson states that condition #1 needs some additional language such as notwithstanding any waivers granted herein, etc. He thinks that it should be clear that in the future development, they are not bound by any waivers in this plan. Mack suggests they should add a separate condition that for any waiver granted that the applicant or any future developer would resubmit to get the approval of the Planning Board for any previously granted waivers. Hutchinson asks Clausen that if the waivers are granted and the applicant at some point files a modification of the subdivision, then these waivers would continue. Clausen responds by telling her that the Planning Board would retain the ability to review them. She clarifies that without the condition, these waivers would continue. Clausen explains that they are not necessarily approving the waivers now but gives the Board the ability to review them in context of a project. Thomson asks about one of the conditions that has been deleted from the suggested list now, to formalize a permanent easement for right of access to the water tower. Glovsky tells him that the City of Beverly has a water tower on a portion of the 80 acres and agreements were made with the property owner and City that were not in writing that he's aware of He adds they are open to working out an arrangement with City, noting however that the City has the right to take what 7 Beverly Planning Board Meeting Minutes July 18, 2017 they need by eminent domain. Glovsky indicates nobody has asked the owner for an express easement and he doesn't believe it's germane to the definitive plan. Thomson asked about a response to the City Engineer about removing public easements but not private ones. Ogren explains that he said when the Board takes the action to eliminate the ways, it can only be to remove the public right and if someone has a private right they would still have that right. For example, if someone was deeded lot you may eliminate the way, but not the right of the individual; they are not asking to eliminate any ways in that category other than possibly a portion of the way that theoretically owners of Apple Village would have the right to. He says those owners would still have the right. Thomson asks if there are any public ways in this subdivision currently. Ogren explains that there are no public ways. Thomson asks what public rights there are. Glovsky explains that the public right is right that the City may have to get to the water tower, and there was some concern that eliminating the cul -de -sac that they were in -fact eliminating a connection between Trask Lane and the water tower. He says that whatever the rights the City has will not be affected by that. Thomson said the right of the city to access its water tower concerned him. He said he would need a better explanation of why they would allow elimination of that right of way, if it exists. Glovsky tells him if the Board acts on the plan tonight, there are a number of changes that would be needed to the plan and one could be to add the word access to that utility easement. Clausen states that it is the City's opinion that we do have access and rights to the easement that provides access to the water tower. He adds that one of the conditions proposed [ #5], states that approval of the definitive subdivision doesn't eliminate that and has right of access to maintain water tower, whether the subdivision plan is approved or not. So, this means that any approval of the subdivision does not take away any rights of access that a private entity would have, including the City. He notes there is an easement on Apple Village that the plan proposes to eliminate; he reiterates that a subdivision plan does not eliminate any easements. Thomson asks Clausen if that language should be removed from the plan. Clausen confirms that it is unnecessary and that the plan should show all existing easements. He adds if the easement is to be removed in the future, it needs to be discussed with whomever holds the easement. Mack seeks to clarify the language of condition #5. He says if the City has an easement but not shown on plan, it might be eliminated. Thomson suggests the language, "whether or not shown on the plan," be added. Thomson asks if there are any other comments and asks if anyone from the public would like to speak. Rick Marciano, 141 McKay Street, asks if there are any fire lanes that the Fire Department uses. Wynne clarifies that there are fire roads and that the applicant is not asking to discontinue that. Marciano also asks if any of the trails up through the property that have been used for years will be disrupted. Thomson explains that there are no physical changes being shown on the plan and any approval by the Planning Board regarding this plan will not eliminate anything. Marciano then asks who paid for the road on Trask Lane that runs up to the water tower. Glovsky, through the Chair, answers the owner did. Marciano then asks if they want to shorten the actual Trask 0 Beverly Planning Board Meeting Minutes July 18, 2017 Lane that goes up to the tower. Wynne explains that Trask Lane ends before the tower and then it is just a path or way. Marciano asks how the Board can approve the plan if they aren't clear on what they are doing. Thomson tells him he is not sure what their options are, but he knows the Planning Board can deny the plan, deny the waivers which denies the plan, or do nothing and let the time expire, in that case the plan is approved automatically, or they can approve it with conditions. Marciano asks if the Mayor is exploring options regarding the property. Thomson tells him the Mayor has not communicated with the Board on this matter. Marciano requests that the Board wait to decide on this issue until they really know what happens. Thomson explains they don't have that option due to time limits of the statute. Mack notes regarding the list of options, that there are a lot of potential modifications and it may require a revised draft. He asks would it also be an option to propose a continuance, to get more information, plans, etc. and then vote in September. Thomson tells him that is an option. Mack explains that there is a lot to follow from tonight's discussion and there is a lot going on. Thomson asks if the applicant is asking for more time to clarify. Glovsky tells him only if the Board feels it is necessary, he doesn't feel the conditions require many changes, but if the Board wants more time they would not be adverse. Hutchinson would also appreciate some extra time to review everything with some new proposed language. Thomson suggests that they can hammer out the language, but everyone might not be comfortable acting on it that evening. N. Barrett said that on conditions #1 and #7 talked about making a reasonable few tweaks. He adds his sticking point relates to the waivers and if they are looking at a zoning freeze plan, his thought is why it cannot be waiverless. He notes if they approve the waivers, his goal is to make sure that they are not binding upon the Board when they are presented with an actual plan. He's not sure there's a legal way to do that. Thomson tells him they can craft the language and conditions to address the points and avoid implications that are passing it as a waiverless plan. But he notes his own concern that when waivers are granted, that they are considered to be in the best interest of the public, not the applicant. But he does not see any benefit currently to the City or the public if they grant these waivers. He adds they have to decide what is in the best interest of the City. Clausen states he doesn't see any public benefit to granting the waivers, and they just want the Planning Board to review future projects based on all regulation requirements, and the Board retain the ability to require that they meet all the regulations. If the Board is so moved, the Board has the ability to deny waivers requested. Thomson states that if the Board denies anything that the applicant can appeal their decision. He also adds that if they approve the plan with conditions, the applicant can appeal. He tells them that nothing they decide to do tonight will cut off the applicant's right to appeal whatever they do. He believes they should act in the best interest of the City. N. Barrett asks if an alternative would be to give the applicant the opportunity to refile a waiver list. Thomson tells him if they deny the waivers they have a reasonable time to come back and 0 Beverly Planning Board Meeting Minutes July 18, 2017 address the waivers. Glovsky tells them that if they continued the public hearing it would give Mr. Ogren a chance to get together with Mr. St. Louis to discuss what waivers are in the best interest to the City. He tells them that he didn't realize until tonight there were issues with the waivers. He provides another option would be to continue the meeting until Mr. Ogren and Mr. St. Louis have met. Wynne tells them that the agreement upon the waiver list between Mr. St. Louis and Mr. Ogren would have to come before the Planning Board for final approval. Clausen tells them he thinks the Planning Board should review this tonight and not push it out to decide at a later date. Thomson also agrees it should be decided upon this evening. Mack asks if the proposed condition that any waiver granted tonight would be subject to further review with future Planning Board and future developer is a legitimate condition. Thomson answers it would be up to the court to decide if the applicant is not happy with any of the Board's conditions and that he believes it is a reasonable condition. Thomson asks for any more public comment, none is heard. Mack: Motion to close the Public Hearing. Flannery seconds. Motion passes (8 -0). Thomson asks the Board if they would like to decide on the matter now or decide later in meeting. N. Barrett: Motion to deny the application for a definitive subdivision plan for Folly Hill /Trask Lane submitted on March 23, 2017, based on the waivers requested. J. Matz seconds. N. Barrett notes that given the situation, he believes it should be a waiver -less plan. C. Barrett asks if these waivers were the same waivers for the previous approved plan. Thomson tells her no and that Mr. Ogren thought some of the waivers were granted previously and the Planning Board has added the ones that need to be regranted. C. Barrett asks if they are the waivers from the 1981 plan, and Thomson tells her that some are and some are not. Mack says that they should identify particular waivers that would be denied because some of them are typically granted in an ordinary course; to not do so here could be seen as arbitrary and capricious. He notes he prefers they should allow the plan subject to conditions. N. Barrett says that if anyone wants to suggest specific waivers or if anyone wants to propose an amendment to that motion that they can at least start there. Matz tells them that he reviewed the first 8 waivers, and asks is it correct to say roadway was approved under previous plan, etc. and therefore some of these waiver requests would be reasonable. Thomson tells him that in the City's view that is not the case. N. Barrett mentions some waivers they would normally approve without issues. He identifies the waivers #1, #2, #4, #6, and #7 as outlined in the application, as ones that would not normally be approved. N. Barrett says on the whole that what they have is unacceptable. 10 Beverly Planning Board Meeting Minutes July 18, 2017 Motion to deny the subdivision fails to pass (4 -4, N. Barrett, Craft, Matz, and Thomson in favor and C. Barrett, Flannery, Hutchinson, and Mack opposed). Thomson suggests the options are to delay to another meeting (September) or work on conditions for an approval. Wynne notes that an extension would be needed if the Board continues the discussion. Glovsky requests a brief recess so the applicant can discuss. *The following section restarted later in the evening to continue discussion. Glovsky requests a continuance until September so that they can work with the City, and he suggests that a subcommittee be created including the City Solicitor because (1) there are differences of opinion that he thinks need to be resolved regarding the status of the plan and how it may or may not affect waivers that were previously granted to the 1981 plan and (2) they would also like to review with the City Engineer and City Solicitor, and a representative or two from the Planning Board, the waiver list and rationale for the waiver requests. He wants to resolve in what could be an amicable fashion. Glovsky expresses surprise that the Planning Board hasn't been able to review the Folly Hill history, the 1971 agreement, the '82 amendment to the agreement, and the circumstances around the `82 definitive plan. He also explains some history, that there was a communication problem between the Reeve family and the Grimes' administration. The family didn't pay the City because the City hadn't built the sewer and water yet. The City threatened to rezone the property because the family didn't maintain its end of the bargain. He notes there was protracted litigation and meetings, and the issue was eventually resolved by the City not rezoning the property. He notes the 1982 definitive plan did freeze that zoning, though it wasn't needed, the family paid the money, and the project went forward. He believes it would be important for the Planning Board to have more background on the project. He asks the Board for continuance until the September meeting if the Board can offer a representative to meet with the applicants to come to meeting with fewer issues in the air. Mack said he is prepared to make a motion, in lieu of a continuance, and to approve the subdivision plan with conditions. Hutchinson states that she is disappointed the applicant is seeking conditions on a continuance and that the Board has no authority to commit the City Solicitor to be on a task force. She would support Mack's motion. Mack: Motion to grant approval of the proposed definitive subdivision plan with conditions listed in the staff report as revised, with the following changes: Condition 1 — after subdivision regulations, insert the phrase "to the extent applicable." Condition 5 — insert the word "whether" before shown and before held. Condition 7 — add after the words water infrastructure "within the proposed site" so that it is clear it doesn't extend to connections off the site. They add two new conditions: New Condition 11 — That the Planning Board retains jurisdiction to evaluate in the context of the proposed future development of the site any waivers granted herein. 11 Beverly Planning Board Meeting Minutes July 18, 2017 New Condition 12 — That the applicant of any future proposed development submit a modified plan with a list of the requested waivers for consideration by the Planning Board in the context of the proposal. That any letters from Boards or Committees with requested conditions be included herein, if applicable. Hutchinson seconds the motion. Thomson asks if they are going to require extinguishing of existing easements language be removed from the plan. Wynne tells him that refers to utilities easement to remain and it should say access and utilities easement to remain. Thomson asks for something more specific. She questions if language should be corrected under proposed Condition #2. Flannery and Mack ask if it should be Condition #5. Thomson says that one change was to correct to utility and access easement and the other change was to Apple Village there was language referencing extinguishing an easement. Clausen explains them the definitive plan should show existing easements, not intent. Thomson clarifies it's not "to be extinguished ". Mack: Amends the motion to add that Condition 5 be changed to read that "the definitive plan show existing easements including the correct notation of the utility easement as a utility and access easement." And that he doesn't want to add language about extinguishing easements. Hutchinson seconds. C. Barrett mentions that the applicant wanted to tweak #3. Glovsky mentions that it should read that the definitive subdivision plan contains "the RSD" 200' buffer (with the words in quotation to be added). Mack: Amends the motion to have that phase added to Condition 3. Hutchinson seconds. Thomson confirms that Board understands the motion. The motion is approved (5 -3, C. Barrett, Flannery, Hutchinson, Mack, Matz in favor and N. Barrett, Craft, Thomson opposed). *Agenda was taken out of order. Continued Public Hearing — Site Plan Review Application #127 -17 and Special Permit Application #153 -17 —105 Sam Fonzo Drive — construct two self - storage buildings, one general commercial/light industrial building, and request for three driveway accesses — Beverly Airport Self Storage, LLC, c/o Miranda Gooding, Glovsky & Glovsky, LLC Thomson tells the Board the applicant is requesting a continuance until the September meeting. Mack: Motion to grant the applicant's request to continue to the September 19, 2017 meeting for both applicants. Craft seconds. The motion passes (8 -0). Public Hearing — Special Permit Application #158 -17 and Amendment to Inclusionary Housing Permit #06 -14 — 131 McKay Street — Convert on -site affordable rental units to affordable home - ownership units and /or to allow payment of a fee in lieu of providing affordable units on site — Windover McKay LLC, c/o Glovsky & Glovsky, 12 Beverly Planning Board Meeting Minutes July 18, 2017 Wynne tells them that the applicant has requested to withdraw the application without prejudice, which means they would have the ability to resubmit. She notes that she's unsure of the reason why they're asking to withdraw. C. Barrett asks if the applicant is withdrawing permanently. Wynne explains that without prejudice means they can resubmit. Mack asks if they don't agree would the applicant have to wait two years to resubmit. Thomson confirms yes, unless they show a substantial change. Mack: Motion to grant request to withdraw the above - referenced applications, without prejudice. Flannery seconds. Motion is approved unanimously (8 -0). Public Hearing — Proposed Amendments to "Submission Requirements, Procedures & Supplemental Regulations" Section 315 -15, Inclusionary Housing Regulations "Fee in Lieu of Units," pursuant to Chapter 300, Article XV of the Beverly Zoning Ordinance entitled "Affordable Housing" Hutchinson: Motion to recess for Public Hearing on the matter. Flannery seconds. The motion passes (8 -0). Wynne reads notice of Public Hearing. Thomson asks who from the public is interested in speaking. He explains that the regulations set a fee that a developer is required to pay if the Board allows them to build affordable housing units off -site. He adds the inclusionary housing ordinance requires that projects of a certain size need a certain percentage of units be affordable and the default rule is that the units need to be provided on -site and comparable to the market rate units. Developers can request relief from the Board of the requirement to provide on -site affordable housing units by paying a fee in lieu and allows them to donate money to the City's Affordable Housing Trust. He adds the question before the Board is what that fee schedule looks like. Wynne tells them that the fee was set as 35% of the average of the lowest 50% of single family home or condominium sale prices in the Beverly neighborhood in which the applicant is developing the units in the three fiscal years immediately prior to the current fiscal year in which the application is made. She tells them that neighborhood refers to the assessor's neighborhood code, and not the standard neighborhoods that everybody understands. Thomson comments that they have about 40+ different neighborhoods in the City and that each has its own sales statistics, which is used to create the formula. He notes there is no discretion involved. He said the feeling is that the median is the best statistic to use because it is more reflective as to what is going on in that particular neighborhood. Wynne agrees and indicates that staff did some research of other communities, noting there are a wide array of different calculations used. She added that Aaron Clausen did some research and he believes it would raise the fee by about 20% on average per unit. 13 Beverly Planning Board Meeting Minutes July 18, 2017 C. Barrett asked if this is the verbiage discussed in their smaller Planning Board meeting. Wynne answers that it was part of the presentation and discussion made during the joint public hearing with the City Council but the regulations are not subject to the same type of approval and it is not an ordinance so it is not subject to approval by the City Council. She tells them that is something the Planning Board has purview over and that is why they did it separately. C. Barrett says that she has some questions related to the Affordable Housing Trust Fund. She asks if the Trust has been set up and how much is in the fund. Wynne confirms that it has been set up and that there is about $758,000 in the trust currently. C. Barrett asks if any of the money has been disbursed. Wynne tells her no, that the Trust has met but they are still determining priorities. C. Barrett asks if the people on the trust will vote on the disbursements. Wynne tells her they do and they have to set up that process, similar to the grant process for the CPA. N. Barrett asks who is on the Trust. Wynne responds the members are the Mayor, who is required by statute, as well as Clausen, Bryant Ayles, the Finance Director, Richard Dinken, Former Planning Board Chair, and Sue Gabriel, Executive Director of Bootstraps. Clausen adds that the process will be similar to CPA, except they want to be more responsive to the applications because the development cycle is challenging for non - profits or any affordable housing developer. He adds they want to develop guidelines and a process that is very clear and consistent and gives the trust has the ability to act quickly. Thomson asks if there are any developments underway that promised funds that haven't yet arrived. Clausen tells him there are still some such as Kelleher Pond (collected), Vitality on Dunham Road, annual payments over 10 years of about $500 -600K, about $50,000460,000 a year. Wynne also notes the Congress Street project has a required payment, should it be built. Rick Marciano, 141 McKay Street, asks what the money from the Trust fund can be used for. Thomson and Wynne tell him it can only be used for the creation or preservation of affordable housing units. Marciano asks if a developer wants to build something would the Board give them 10% of what is in the fund. Thomson tells him it is not the Planning Board but the Housing Trust that decides that. Hutchinson: Motion to close the public hearing. Seconded by Matz. Motion passes (8 -0). Hutchinson: Motion to approve revision to the calculation method of the fee in lieu of providing affordable units pursuant to Section 315 -15 of the Inclusionary Housing Regulations. Matz seconds. Motion passes (8 -0). Request for a Minor Modification to Inclusionary Housing #09 -16 at 480 -482 Rantoul Street — Beverly Crossing 480, LLC c/o Glovsky and Glovsky Michael Dissette, Glovsky & Glovsky LLC, tells the Board they are here to request a minor modification to the inclusionary housing approved plan. The minor modifications being requested do not affect the total number of housing units which are 90 or the 11 affordable units. Originally the plan had 9 one - bedroom units and 2 two - bedroom units as approved. He tells them they would like to change 3 of the one - bedroom units to studios, and change locations of 6 of the 14 Beverly Planning Board Meeting Minutes July 18, 2017 other units as reflected in the plans they submitted. He tells them that the result of the changes would be 2 of the 3 studio units would be designated as affordable, leaving 7 one - bedroom units and 2 two - bedroom units in the affordable category. The market units they would end up with would be 1 studio, 52 one - bedrooms, and 26 two - bedrooms. Dissette adds that the change in the locations doesn't affect the proportionate dispersal throughout the project, as pointed out in the staff report. He tells him the finishes will remain the same and the sizes of these types are comparable. He explains the proposed sizes of the various units. He explains the intent of the modification is to introduce a new type of unit (studio), because they feel more variety of rental housing choices is needed at the smaller footprint, especially for people looking to spend the least amount on housing such as seniors or single occupants that may be cost burdened. He adds there is a housing need for this group in Beverly. Dissette describes that DHCD recognizes a studio unit as a minimum of 250 square feet size and has added this unit type to the Regulatory Agreement, noting that the applicant did not have the updated regulations from DHCD at the time of application. He tells the Board that if they approve the request, the applicant will submit the revised Regulatory Agreement and revised Local Action Unit application, required by the state, to the planning office as requested. He also explains that a covenant for the property is on record that protects the undertaking by the applicant to have 11 affordable units at this property and the regulatory agreement, when approved and recorded, would take the place of that covenant. Dissette notes that in terms of recognizing a housing need, that at the planned development at 112 Rantoul, 10 studios were approved, and 2 or 3 of those were designated affordable. He believes it is a positive to have 2 of the studio units as affordable and adds to that market positively to those individuals looking for options at that range of cost. Dissette then explains the comparable sizes from the previous plan to the new studio units. Matz asks to clarify about the studios being affordable. Dissette answers that 2 studios will be affordable (out of 3), 7 one - bedroom units will be affordable (out of 59), and 2 two - bedroom units will be affordable (out of 28 total). It is a decrease from 9 to 7 affordable one - bedroom units; there was no change in two - bedroom units. Matz asks if they are increasing the number of market units because there is higher demand for those units. Dissette answers that it is not a negative to have one extra affordable studio. Matz confirms that there is a higher demand for smaller studio units, based on the City's housing study and that they are trying to serve a lower price point. Chris Koeplin of Beverly Crossing, confirms. Thomson asks about the differential in rents. Applicant Chris Koeplin, Beverly Crossing, shares the affordable housing rents: a studio is $1,278, affordable one - bedroom is $1,311, and affordable two - bedroom is $1,571. Koeplin believes their CFO obtained the rates from DHCD and he believes it includes a utility allowance. Clausen states that HUD would not include utility allowance. Ellen Hutchinson asks what the square footage of the 3 one - bedroom units was before the change to studios. Koeplin tells her it stayed the same at 582 square feet and because DHCD requires 750 square feet for a one - bedroom then they had to change it. He reiterates that there is also a market demand for it. Thomson confirms that they are not shrinking one - bedrooms to 15 Beverly Planning Board Meeting Minutes July 18, 2017 make studios. Koeplin agrees. Hutchinson suggests it is a requirement by DHCD. Dissette tells them there is a waiver process at DHCD level they could pursue but decided not to. C. Barrett asks for clarification about the plan they approved in June 2016 with 11 affordable units and that the new plan also has 11 affordable units and there is no change in the number of units. Dissette confirms. Dissette states that in a regulatory agreement that you can elect to have floating units and fixed units and what that means is what happens when somebody earns out of the category and they are in an affordable unit. He suggests the preference at the state level, and the greater benefit to the city, would be in floating units. Prior they had checked the box to do fixed units, but now they would like to check the box for floating units. Thomson asks him if there was no regulatory agreement at this point. He tells him not currently. Wynne clarifies that a draft should be submitted to the city but is not required prior to the Board's approval. C. Barrett asks based on the comment regarding the floating units, does the applicant need to get preapproval to change the affordable apartments. Wynne believes as long as they are dispersed throughout and not all on one floor. Dissette states that an annual census report needs to go the state. Craft asks that this won't change the location of units if changed to floating option. Dissette tells him that is correct. Hutchinson: Motion to find the proposed modifications to be minor in nature. C. Barrett seconds. Motion passes (8 -0). Hutchinson: Motion to approve the requested modifications with the requirement that the Planning staff receive a draft of the regulatory agreement and that it be recorded prior to occupancy. Matz seconds. Motion passes (8 -0). Cluster Subdivision Plan Chapman's Corner Estates (Settlement Plan) - Request for One Year Extension of Construction Completion Date (July 28, 2017) by Manor Homes Development LLC Thomson notes they are requesting a 1 -year extension of the construction deadline until July 28, 2018. No one is present for the applicant. Hutchinson asks what happens if the Board denies an extension. Thomson answers they would have to come back for another permit. Mack: Motion to grant the request of a 1 -year extension of construction till July 28, 2018. Flannery seconds. The motion passes (7 -1, Matz opposed). Bond Reduction Request - Open Space Residential Design (OSRD) Site Plan & Definitive Plan - 122 Cross Lane, (aka Greening Way) - Benco, LLC 16 Beverly Planning Board Meeting Minutes July 18, 2017 Thomson explains the applicant is looking to reduce the bond from $84,150 to $34,650, a reduction of $48,500. He asks if the City Engineer has reviewed this issue. Wynne confirms. She adds that the last modification the Board made granted the applicant the right to release the lots without conveying the open space and the trigger changed to the release of the performance bond. She explains she interpreted that to be when the performance bond released in full, but she suggests that the Board offer no further reductions be made until all requirements have been met. Mack: Motion to grant the requested bond reduction subject to the condition that no further bond reductions shall be approved until all conditions of the original decision have been met. Craft seconds. The motion passes (8 -0). Continued Public Hearing — Special Permit Application #154 -17 — LP Henderson Road — Construct Airport Hangar in Water Supply Protection Overlay District —1010 Hangar, LLC, c/o Hayes Engineering, Inc. Matz: Motion to waive the reading of the public notice. Seconded by Flannery. Motion passes (8 -0). Ogren explains that they applied for a Water Supply Overlay Protection District ( WSPOD) permit to construct an airplane hangar and he appeared before the Board previously with some confusion about how the process goes. He's had the opportunity since that meeting to meet with the Salem Beverly Water Supply Board and their consultant and come to further clarification. He explains that the application was for the WSPOD and was simply a special permit and not an application for site plan review. He tells them they did receive correspondence from the two consultants of the Water Board in June and he responded to them on July l I' after doing test holes. He said Meridian Engineering had three questions and he has a copy of his response to those concerns. He tells him that he wants to discuss that because he only became aware of the comments from the City Engineer when he saw Mrs. Wynne's update to the Board. She reminds him that they were emailed out to him May 23 d . He said he did not see them prior and notes most of those questions relate to the conservation commission review. He responded responses to those comments on July 17 t ''. He suggests they start the discussion on any questions relative to the response between him and Meridian, and the Salem & Beverly Water Supply Board. Thomson asks if there was a City Council meeting the night before. Ogren tells him that it was his understanding they voted the amendment to the lease. Wynne confirms the lease approval by City Council and that it reflects the current building size. Thomson explains that the Board is expected to review a special permit but are also reliant on the Salem & Beverly Water Supply Board and their review of the issue and they just got the information that afternoon. Ogren tells them that the response came on July 11'. Wynne confirms that a subsequent response came earlier that day. Thomson asks representatives of the Salem Beverly Water Supply Board if they have any remaining concerns. 17 Beverly Planning Board Meeting Minutes July 18, 2017 Charlie Wear, Meridian Engineering, consultant for the Water Supply Board, thanks for the cooperation of Mr. Ogren. He explains that one of the issues is adding some numbers to the plan to clarify details. He also mentions there are some old catch basins and that Ogren has discussed with some of the airport representatives that the drainage structures have been disconnected at the runway which was abandoned several years ago. He adds they are recommending a condition that catch basins should be removed or filled with sand. His only other recommendation would be to put a note in the plan, stating that the area was not within a Zone A. Ogren explains he had not added that to the plan; it can be easily done. Wear explains that the zoning section is difficult to comprehend and it talks about uses that are not allowed in the district one of which is any building that has storage of hazardous waste (he believes), that a floor drain is not allowed. He suggests the need to clarify what the definition of hazardous waste is because it makes reference to a State regulation. He recommended leaving that up to the Zoning Enforcement Officer (ZEO) and condition it such that if floor drains were required, that they be connected to the sewer and that a oil /water separator be installed, and that could be handled through the sewer department. He also suggests that the Board condition that the plan be in compliance with that section of zoning that discusses storage of hazardous materials, which puts it in the hands of the ZEO. He says there are four conditions that Water Supply Board is requesting. Peter Smyrnios, Salem Beverly Water Supply Board, tells the Board that Wear is accurately representing their concerns. Matz clarifies that the intent was not to prohibit floor drains within the district, the intent was to prohibit floor drains that directly discharge into the ground. What is permissible is to have floor drains that connect to the City sewer system through an oil/water separator. Wear states that he agrees with that intent, but that is not clearly stated. He adds that floor drains are not allowed to discharge to the ground under any circumstances. They are happy relying on the ZEO's interpretation. Matz also adds the intent to abandon catch basins and fill with sand is for the same reason and so they are not potential pathways of migration for gasoline and fuel oils considered hazardous. Thomson clarifies, if they are going to approve it, isn't it sufficient to add a requirement that floor drains in the hangar be connected to the public sewer. Matz agrees. Wynne mentions that there was a comment letter from the Conservation Commission noting five conditions in their approval. The Board could condition it subject to the letter submitted as typically done. Ogren mentions an Order of Conditions was issued and that part of those conditions was that the City Engineer wanted to have additional time to review it. He adds that he can't guarantee that his responses are acceptable to Mr. St. Louis but he believes that they are not related to the special permit. He suggest the board could subject the approval to the comments of the City Engineer, but they may not be complete. Wynne tells them the only other letters were recommendations from the Board of Health and the Engineer's letter. Thomson confirms they have the Conservation Commissions letter; the note in LEC's letter about Zone A not finding any tributary to be added on the plan; the three items identified in Mr. Wear's most recent letter; and they are modifying the hazardous materials to specifically state that there should be a floor drain connected to the public sewer, and that the basins should be removed or filled with sand, and dimensional requirements of the spillway be added. Matz comments that based on his review, that LEC's conclusions are reasonable and the 18 Beverly Planning Board Meeting Minutes July 18, 2017 minor tributaries that become part of Zone A are done off of old GIS maps. In this case it was field verified and he finds the conclusion acceptable. Wynne asks Ogren if he foresees any changes to the plan based on the letter he submitted. Ogren tells her he doesn't think it affects the use and that they are there for a use special permit. Thomson tells him they will rely on Conservation Commissions condition then. Matz: Motion to close the public hearing. Seconded by N. Barrett. Motion passes (8 -0). Matz: Motion to approve Special Permit Application #154 -17 for LP Henderson Road to construct an airport hangar in the Water Supply Protection Overlay District: to include Order of Conditions set forth by Beverly Conservation Commission; to include the additional conditions agreed upon between Salem Beverly Water Supply Board, their consultant, and the applicant; to include the conclusions reached by the consultant LEC that there is not a tributary to the public water supply within 200 feet of the project; to include that the floor drains will be connected to an oil/water separator and for discharge to the City sanitary sewer system; and to include the abandonment or closure of additional exterior catch basins in accordance with local, state, and federal regulations; and to include standards set forth from the Health Department. Seconded by Mack. Motion is approved 8 -0. New or Other Business There is no new business. Adjournment Mack: Motion to adjourn the meeting. Seconded by Flannery. The motion passes (8 -0). The meeting is adjourned at 9:38 pm. 19