2/14/12 Planning Board Meeting

2/14/12 Planning Board Meeting

Postby Mary Wright » Thu Mar 08, 2012 10:30 pm

PLANNING BOARD MEETING MINUTES
TUESDAY, FEBRUARY 14, 2012

A meeting of the Planning Board was held on Tuesday, February 14, 2012. Mr. Marks called the meeting to order at 7:05 PM and announced that the meeting is being recorded and will be available on cable and on the website.

ATTENDANCE
PRESENT: Ernest Marks (Chairman), Mark Mungeam, Derek Brown, Eben Chesebrough, Robert Werme Jr., Michael Zwicker, Tracy Sharkey, Michael Greco (Associate Member), William Cundiff (Town Engineer), Stephen Zisk (Planning/Conservation Agent).
ABSENT:

7:05 PM PUBLIC HEARING: PYNE SAND & STONE COMPANY
APPLICATION FOR A SITE PLAN REVIEW, 34 & 36 DAVIS STREET
Mr. Marks opened the public hearing.
Ms. Sharkey made a motion to continue the public hearing for Pyne Sand & Stone Company, Application for a site plan review, 34 & 36 Davis Street to 7:30 PM on February 14, 2012. Mr. Werme seconded the motion. Vote – Unanimous.

7:07 PM PUBLIC HEARING CONTINUED: COOPERTOWN REALTY TRUST
APPLICATION FOR AN AQUIFER PROTECTION SPECIAL PERMIT &
APPLICATION FOR AN EARTH REMOVAL SPECIAL PERMIT
34 & 36 DAVIS STREET
Mr. Mungeam recused himself from the public hearing, due to having missed two meetings.
Mr. Marks opened the hearing. There will be two votes: one for the Aquifer Protection Special Permit and one for the Earth Removal Special Permit.
Mr. Michael Weaver from Guerriere & Halnon, Inc. joined the meeting and reviewed his presentation from last meeting, which included information relating to the size of the site.
Mr. Andrew Smith of 21 Monroe Street stated, regarding Aquifer 8.1.5 establishment step one, it states that owner’s applicant shall file an application for a building permit with the building inspector for the purpose use. Mr. Smith asked if a building permit had been filed. Mr. Weaver replied that a building permit has not been filed, but a zoning determination letter has been filed with the Building Commissioner. Mr. Weaver went on to clarify that 8.1.5, step one states that “when the bounds of delineation are in doubt or dispute” a building permit is needed. Bounds of the aquifer protection overlay district are not in dispute in this case, therefore a building permit is not needed before an aquifer permit can be granted.
Mr. Chesebrough made a motion to close the Public Hearing: Coopertown Realty Trust, Application for an Aquifer Protection Special Permit, 34 & 36 Davis Street. Mr. Brown seconded the motion. Vote – Unanimous.
Mr. Chesebrough feels that the Planning Board has received the groundwater information. He has no problem with the Aquifer Special Permit at this time. The information documents and data submitted to the Board indicate compliance with the water resource protection overlay district bylaw. Mr. Chesebrough feels the action needed is to vote on the waiver request for rendering less than 30% of the site in the natural vegetative state. Mr. Chesebrough feels the Planning Board could grant that and vote on the Aquifer Permit with three conditions:
1. Receipt of a grant of the Earth Removal Special Permit,
2. Evidence of ownership of both parcels by way of an endorsed 81x plan or A&R plan, which provides both parcels into a single parcel, and
3. Conditions attached to the original aquifer permit application, if any, are included.
Mr. Cundiff expanded on condition #3: the original permit was denied so it had no conditions of approval. He feels the Planning Board should use the standard protocol, make a decision and develop conditions before the decision is signed.
Mr. Marks stated that Mike Greco is an official voting member for this application.
Mr. Chesebrough made a motion to grant the waiver for rendering less than 30% of the site as a naturally vegetative state as requested by the applicant. Mr. Zwicker seconded the motion. Vote: 6-in favor, 0-opposed. Abstained: 1.
Mr. Chesebrough made a motion to approve the Aquifer Protection Special Permit with the following three conditions: 1) Receipt of a grant of the Earth Removal Special Permit, 2) Evidence of ownership of both parcels by way of an endorsed 81x plan or A&R plan, which provides both parcels into a single parcel, and 3) Conditions attached to the original aquifer permit application, if any, are included. Mr. Zwicker seconded the motion: Vote: 6-in favor, 0-opposed. Abstained: 1.
Mr. Chesebrough made a motion to close the Public Hearing for Coopertown Realty Trust, Application for an Aquifer Special Permit, 34 & 36 Davis Street. Mr. Zwicker seconded the motion. Vote: Unanimous.
Mr. Chesebrough made a motion to close the Public Hearing for Coopertown Realty Trust, Application for an Earth Removal Special Permit, 34 & 36 Davis Street. Mr. Zwicker seconded the motion. Vote – Unanimous.
Mr. Chesebrough read his statement regarding his opinion of the Earth Removal Special Permit. He stated that salient findings must be considered. The whole scope of earth removal from the site far exceeds any rational or reasonable reading of the exemption clause found at 6.1.3.1. The explanation for removal of approximately 174,000 cubic yards of material to site the proposed structures exceeds ‘that displaced by the portion of the building or accessory use below finish grade.’ The applicant invokes a section 6.1.6.3 exemption for a 100-foot setback from the adjacent property line. Mr. Chesebrough disagrees.
The public hearing process demonstrated that another option was available to the applicant. This option placed the proposed building at the front of the parcel, close to Rte. 16. There exists a residential structure at this locus, which has been vacant for some time. The applicant rejected this option. The vacant residential structure could be demolished, or could be converted to a closed barn structure to facilitate the stated use of the project. This option would not require the excavation of 174,000 cubic yards of material. This option would also eliminate the problem of two principal uses on the same lot. However, the applicant rejected that option and requested the Planning Board to consider the plan as submitted.
The proposal as submitted indicates a slope of 2:1 after excavation. The bylaw requires a 4:1 slope. Mr. Chesebrough is worried about the safety of the nearby residential neighborhood, underlying aquifer and coldwater fishery stream.
Mr. Chesebrough has considered all materials submitted and his vote is to deny the Earth Removal Special Permit as submitted. Mr. Chesebrough will submit his written statement to the Planning Board.
Mr. Weaver clarified that putting the greenhouse at the front of the property would place it too close to the wetlands and would be in violation of the local wetlands ordinances. That is why that alternative was not chosen. The applicant went with the “as submitted” plan because the alternative that Graves Engineering proposed had a sweeping driveway that was more dangerous than the original plan.
Mr. Chesebrough made a motion to approve Coopertown Realty Trust, Application for an Earth Removal Special Permit, 34 & 36 Davis Street. Mr. Werme seconded the motion. Vote: 0-in favor, 7-Opposed.

7:30PM REOPENING OF THE PUBLIC HEARING: PYNE SAND & STONE COMPANY: APPLICATION FOR SITE PLAN REVIEW
34 & 36 DAVIS STREET
Mr. Chesebrough said there are three options for the application: it could be continued without discussion, it could be withdrawn without prejudice, or discussion could begin on it. If the application were withdrawn without prejudice, all charged fees, minus money spent for the legal ad, would be returned.
Mr. Gary Vecchione joined the meeting and addressed the Board. He feels that there are bylaws pertaining to agriculture that have not been explained to the Board. He will not go for remand. His information on the Right to Farm bylaws includes key phrases such as “you can regulate the activity but cannot unreasonably regulate”. He feels the Board has made this a land taking. He will not walk away from the $100,000 in permitting fees he has paid. He asked the Board to reopen the hearing.
Mr. Chesebrough asked Mr. Vecchione to clarify his decision regarding the site plan review. Mr. Vecchione replied he is asking the Board to rescind the first vote and to hear new information. Agricultural use is allowed on two acres. He feels he has a right to do this project. Mr. Marks stated that at the last meeting, the Board was asked to vote and that is what they did. Mr. Marks invited someone on the Board to make a motion rescind the vote and reopen the public hearing.
Mr. Chesebrough stated that they voted on the Earth Removal Special Permit, not the agricultural use. Mr. Chesebrough feels it was made clear that that Board intended to close and act. Pyne Sand & Stone gave their approval and full notice was given. Mr. Chesebrough is in agreement with Mr. Marks not to reopen the hearing.
Mr. Jay Talerman, Town Counsel, reiterated that during his first trip here, he clearly asked Mr. Henry Lane of Lane and Hamer if he were seeking an agricultural exemption. Mr. Lane said he was not. They were going under the zoning bylaws as a whole.
Mr. Vecchione is not asking for any exemptions, just for the Board to hear what the legislature says and make sure he doesn’t claim the Board is acting in bad faith because they are acting against what they know to be true. Mr. Brown stated that the topic of an agricultural exemption has come up and there has been opportunity to present information prior to this time. He sees no reason to reopen the hearing.
Mr. Vecchione asked Mr. Talerman to state his position that if there were an agricultural exemption on the property that he would have to go before this Board or could he exercise his rights under that exemption. Mr. Talerman responded that a Board cannot require a special permit, they can apply reasonable regulations. Agricultural exemption does not mean carte blanche exemption. Mr. Vecchione asked if he had to claim the exemption in front of the Board or is it a right. Mr. Talerman responded that it is Mr. Vecchione’s burden to demonstrate that he is entitled to the exemption and it is his duty to demonstrate that if there is a bona fide agricultural use, that the exemptions he is seeking are the minimum amount required to support that agricultural use. Mr. Vecchione asked if a threshold had to be met before one can take out a certain amount of material for building purposes. Mr. Talerman responded that each situation is treated according to their own facts.
Mr. Vecchione asked how it would be handled if a greenhouse did not need a building permit under state building code. Mr. Talerman responded that building code is different than zoning. Mr. Vecchione asked if he went before a Land Court judge, could the Planning Board be excluded from that. He does not want to go before the same Board. He asked if the Planning Board would be in the process through denial or could he request that the judge make the decision and refuse a remand. Mr. Talerman replied that it would be up to the judge. Mr. Vecchione would have to win the case to appeal the denial.
Mr. Weaver said they had submitted a letter to the Zoning Enforcement Officer requesting a zoning determination on the proposed use, and it was sent back saying the Board had to make a decision on an agricultural exemption or not and a decision had never been made. Mr. Talerman does not believe that was the case.
Mr. Vecchione then asked to withdraw the Application for Site Plan Review. Mr. Marks mentioned that Mr. Vecchione would have to put that request in writing. Mr. Zisk produced the required form, which was then completed and presented to the Board.
Mr. Brown made a motion to accept the submitted notice to withdraw the application for Site Plan Review without prejudice and to return the fees minus money spent for the legal ad. Mr. Chesebrough seconded the motion. Vote-unanimous.
Mr. Chesebrough made a motion to close the public hearing, Pyne Sand & Stone Company, Application for Site Plan Review, 34 & 36 Davis Street. Mr. Werme seconded the motion. Vote-unanimous.

7:55 PM DISCUSSION: Margaret Bacon, 106 West Street
Mr. Mike Yerka of Civil Site Engineering joined the meeting. Mr. Zisk has a covenant drafted up as to how the subdivision would be constructed. In the process of submitting the covenant for review by Town Counsel, questions arose about the 81W process. Any time the subdivision is modified, it should go through the public hearing process. A copy of the original Form C, items 1, 2 & 3, of Alpha Circle from 1975 is in the packet. Talk continued about conditions that would be met under the rules and regulations of 1975. It is very ambiguous as to what conditions need to be met. Mr. Zisk recommended going through 81W under subdivision control law, modifying or amending an existing subdivision at a public hearing. To eliminate those conditions, the same plan could probably be used, just the conditions modified as to how Alpha Circle would be constructed.
Mr. Yerka stated that his lawyer suggested modifying the covenant because there is no change to the roadway configuration. Form C, item 2 is ambiguous. His lawyer suggested writing up a new covenant under 81W. Mr. Zisk replied that the conditions would be Form C and would use the same plan. Mr. Marks stated that all on the Board are in favor, but a public hearing is needed. Mr. Yerka left the meeting at 8:02 PM.

8:05PM PUBLIC HEARING: SCHOOL DEPARTMENT/TOWN OF DOUGLAS
APPLICATION FOR AN EARTH REMOVAL SPECIAL PERMIT
33 DAVIS STREET
Mr. Leno Filippi of DiNisco Design Partnership and Mr. Al Calcagno of Heery joined the meeting regarding soil removal of approximately 5 acres for construction of a new elementary school. Ms. Nancy Lane, School Department, Town of Douglas, is the applicant. Mr. Marks opened the public hearing.
Mr. Filippi stated that they are still a few days away from awarding the contract. He would like to transfer the application from DiNisco as the representative, to the contractor as the representative moving forward. This is part of the bid package, and the contractor knows he is responsible for this permit. Mr. Cundiff added that, from the administration perspective, it is simple to get a request in writing from the applicant to indicate that the representative is going to change from DiNisco Design to whomever is awarded the contract. Once it is in writing the Board would be able to act on it.
Mr. Filippi presented the graphics of the footprint of the new elementary school. Most of the earth removal would be for the track and the new school. Topsoil needs to be stripped off, 2-3 feet down. The school needs to be built up and they will be adding fill for drainage. They may run into spongy materials in the area of the gymnasium. 3-4 cubic yards of material of common fill is available from the excavation of the haul road. The track/soccer field has to be cut two feet. They will need to fill. Mr. Filippi does not know how much material they will reuse for fill. He believes a lot of topsoil will be reused. The contractor may be able to make a better presentation of materials once he has been on the site.
Mr. Marks asked to continue the public hearing in two weeks. If something comes up and the contractor is not ready in two weeks, the public hearing can be continued.
Mr. Mungeam asked if the Board should discuss the restoration of areas and how the sloped area on the side of the track will be restored. Mr. Filippi stated that all those details have been discussed with the Conservation Commission. The sloped area will be restored using rock riprap and grass. Mr. Cundiff added that the 2:1 slope would be restored with dumped riprap. All other areas will be treated with grass and vegetation or stabilized with riprap.
Mr. Filippi described how the drainage from the crown slope of the playing field would be directed to manholes into the retaining basins.
Mr. Zisk asked what the contractor’s hauling schedule would be. Would everything be hauled piecemeal or all at once? Mr. Filippi agrees that the contractor will need to submit a plan to the Board.
Mr. Zwicker asked if CTA Construction would be bringing in screen implants, how much would he be taking out and how much would he be bringing back. Mr. Filippi expects a loam screener, he does not know about a crusher. Mr. Zwicker stated that the whole intent of the site plan review was that the contractor would be setup so the material would be used on site. Mr. Filippi said the contractor would use due diligence to manage the resources. Mr. Cundiff added that the bylaw does not prohibit removing loam. When the haul road was excavated, a lot of unsuitable materials were discovered. That discovery triggered the request for an Earth Removal Special Permit.
Mr. Cundiff said an email from Nancy Lane would be appropriate to authorize the representative to change from DiNisco to the other party. Mr. Chesebrough said it could be made a condition of the permit to allow it to be transferred.
Mr. Chesebrough asked Mr. Zisk to provide a final approved site plan review. Mr. Zisk agreed.
Mr. Zwicker made a motion to continue the public hearing: School Department/Town of Douglas, Application for an Earth Removal Special Permit, 33 Davis Street to February 28, 2012 at 7:30 PM. Mr. Chesebrough seconded the motion. Vote – unanimous.

8:30 PM DISCUSSION: NATURE VIEW ESTATES
ROAD LAYOUT AND STREET ACCEPTANCE PLANS
Mr. Ross Smith of Uxbridge joined the meeting.
Mr. Zisk spoke regarding receipt of the layout plans, as-built plans and some deeds from Normand Gamache of Guerriere & Halnon regarding the street acceptance of Nature View, Crescent Lane. Mr. Zisk emailed Mr. Gamache back with information about what needs to be received for Town Counsel to perform a review, with specific attention paid to the Board of Selectmen’s layout policy, section 4.1. The Board of Selectmen likes to see a plan go before the Planning Board to be sure it meets all their conditions. The Selectmen will need every deed from every lot.
Mr. Smith has been working with his attorney to get all the deeds and information. He does not want to spend the money to get the road accepted and not be on the Town Meeting warrant. He missed the deadline last year. He is looking for guidance from the Board to say that this project will move forward. Mr. Smith will do a topcoat on the road, but that work is weather related and cannot be done at this time of year.
Mr. Zisk stated that the cutoff date for the warrant article is in a couple of weeks. He added that it is difficult to make the assumption that everything will be ok because legal descriptions get in the way. Procedurally, being on the town warrant is fine because an article can be passed over, but it will not go anywhere at town meeting until you have a layout hearing, and in order to have that layout hearing, all documents need to be in place. Mr. Smith will be working with his attorney on the legal documents tomorrow morning. Mr. Zisk mentioned that Town Counsel needs to review the documents also. Mr. Cundiff added that getting on the Town Warrant is up to the Board of Selectmen. Mr. Smith stated that the request letter to get on the warrant went out September 27 or 28, 2011. Mr. Cundiff said an issue might occur if the layout hearing happens before the road is mostly complete.
Mr. Chesebrough suggested that the Planning Board send a memo to the Board of Selectmen supporting the inclusion of this project on the warrant. Mr. Smith said he would give this information to his attorney tomorrow and ask her to start title research, which would include the deeds. Mr. Cundiff suggested that Mr. Smith needs, at the very least, to submit the language for the warrant article to the Board of Selectmen by March 6, 2012. Mr. Smith needs to send a letter to the Board of Selectmen explaining that he has met with the Planning Board and is proceeding with finalizing the road layout acceptance and attach the warrant article. The Board can send a memo to the Board of Selectmen in support of the application.
Mr. Marks asked if the plan were to be on the Town Meeting and passed over, could it be on the fall Town Meeting? Mr. Cundiff responded that that would be a question for the Moderator. Mr. Smith agreed to work with Mr. Zisk.
Mr. Cundiff added that he received another call from the Akleys, and they are concerned with the way the drainage is being handled at the cul-de-sac of Nature View Estates. Mr. Cundiff is also talking with Adelle Reynolds, Building Commissioner, about the neighbor’s discharge. Ms. Reynolds will prepare a letter for the neighbor to ask if they will move the drainage pipe. The Akleys wanted to know if Mr. Smith would clean up at the bottom of the hill where the water has eroded. Mr. Smith will address that whole package. The catch basins have been raised. Mr. Smith left the meeting at 8:45 PM.

8:48 PM NEW BUSINESS
Mr. Cundiff handed out new discs for the earth removal for the school project.
Mr. Chesebrough asked about the old generator at the school project. He feels it would it be a good use for the Town. He wants to be sure the generator is not disposed of. Mr. Cundiff had put in inquiries to all departments to take ownership of the generator. The Planning Board should send a note to the Board of Selectmen so they can say where to store it. Mr. Chesebrough suggested sending a letter to the Board of Selectmen with a copy to the School Building Committee. Ellie Chesebrough discussed the generator at a Capital Improvements Committee meeting. Mr. Cundiff will prepare a memo on behalf of the Planning Board to the Board of Selectmen with a copy to the School Building Committee. All in favor.
Mr. Zisk said the four layout subdivision plans are 95% done. The abutter notifications are ready to go out. He is waiting for the final plan name and date. One is Crescent Lane. March 20, 2012 is the Selectmen’s Layout hearing. The plans should be ready by the next Planning Board meeting. Mr. Cundiff added that the only activity for another project is Shady Knolls II.

8:54 PM MINUTES: January 24, 2012
Approval for the January 24, 2012 Planning Board Meeting minutes was moved to the next meeting.







8:55 PM. ADJOURNMENT
Mr. Chesebrough made a motion to adjourn the meeting at 8:55 PM. Ms. Sharkey seconded the motion. Vote - unanimous.

Respectfully submitted,

Mary Wright
Recording Secretary
Mary Wright
 
Posts: 609
Joined: Thu Jan 12, 2012 8:56 pm

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