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Meeting Minutes

January 10, 2008

PRESENT: Albert Bangert, Chairman, Brian Sullivan, Sara Trezise, Peter Morin and Edward Tibbetts.

OTHERS: Neil Duggan, Building Commissioner/Zoning Enforcement Officer, Jason Talerman, Special Town Counsel and Jay Tehan, Special Town Counsel.

MEETING CALLED TO ORDER:

Meeting was called to order at 6:30 P.M.

First Application: Dichrisda, LLC, for approval of a Comprehensive Permit under M.G.L. Chapter 40 B, Sections 20 through 23 and the regulations promulgated there under, 760 CMR 30.00 and 31.00, for the construction of a 24 unit, townhouse development on a 1.042+/- acre parcel. Such property is located off Jericho Road and is shown on Assessor’s Map 45, Sections 12-1-0 and 12-1-B.

Robert Buckley of Riemer/Braunstein represented the applicant.

Paul Mirabito from Ross Engineering, John Diaz from Greenman-Pederson and Steven Habeeb of Habeeb Associates were all present.

David Pallotta was present

Donna C. St-Aubin a registered professional court reporter was present taking a transcript.

Attorney Buckley- asked that Sara Trezise recuse herself because he felt she had a professional relationship with someone the applicant was in litigation with.

Sara Trezise- she had discussed this with the Town’s special counsel Attorney Talerman and with the Ethics Commission who both felt she did not have a conflict. Ms. Trezise also filed a disclosure with the Town. She was confident she could remain objective and give a fair hearing.

Attorney Talerman- had spoken with each Board member regarding any conflicts. Ethics Commission felt there was no conflict and Ms. Trezise made a proper disclosure. He was confident her position was sound.

Attorney Buckley- this was not a personal attack on Ms. Trezise. He would like to take it off the table and wished that one of the alternates would take her place. He felt there was some history.

Albert Bangert- respected his request but was satisfied with Ms. Trezise’s decision. He would like to discuss peer review and an overview of the project.

Attorney Buckley- the Board had not received all the town’s comments yet.

A. Bangert- complimented the applicant’s presentation.

Attorney Buckley- the current parcel has a restaurant called On the Water located on it. It was in the A3 residential zone. The proposed would be a three-story, 24-unit condominium. He felt the location was ideal for a smart growth situation by utilizing the harbor and commuter rail transportation. All the units would be two bedrooms with two baths and each unit would have two parking spaces. They met with the Design Review Committee the night before and they asked for more information. Mr. Buckley would like to walk through the site plan, a presentation on traffic and then the architectural plans. He was confident they qualified as a limited dividend organization. The project had obtained approval from Mass Housing. They do have evidence of control of the site.

Paul Mirabito from Ross Engineering- prepared the site plans. He gave an overview of the existing site conditions.

Existing Site Conditions:

20 percent of the site was pervious and 80 percent was roof and asphalt. Access was through two or three entrances off of Hatherly Road. The current restaurants seats about 442 people with 74 parking spaces. All rain water flows off site to the street drains and also into the harbor.

Proposed Site Conditions:

They were proposing 57 parking spaces with the majority located under the building. There would be a level located at grade, elevation 11.2. The cars would access from the left parking lot. They are proposing 5,200 gallons of water for the use of the bedrooms. Currently the site uses 15,000 gallons. There will be a reduction of ten thousand gallons of water. They were proposing sidewalks around the entire building. There would be a reduction in the impervious surfaces and the runoff from the pavement area. They are proposing storm catch basins for drainage.

Attorney Buckley- the water quality leaving the site would be improved.
P. Mirabito- it is preferred to have paved surfaces because any runoff would be treated before it leaves the site. The proposed design makes it easy to treat the runoff. There would not be an increase in requests for municipal services from the Town.

Attorney Buckley- because it is a redevelopment they are required to use best management practices. The purpose of the storm drainage is to maintain the eight percent level. Presently the drainage is not treated.

Albert Bangert- paused the current public hearing on the Chapter 40B at 7:00 P.M. to open the remand hearing for 44 Jericho Road.

Second Application: Continued from October 25, 2007: Dichrisda, LLC requests a special permit/finding, pursuant to Zoning By-law 820/1020.2 (D) and G.L. c.40A, §6, to authorize a change of nonconforming uses at 44 Jericho Road to different nonconforming use, following a remand of the application from the Superior Court at the Board’s request.

The applicant David Pallotta left the room and wasn’t present for the remand hearing on 44 Jericho Road.

Albert Bangert read a letter dated January 8, 2008 from Attorney William Ohrenberger stating the applicant did not intend to precede with the remand hearing at this time.

Peter Morin- wanted it stated for the record that the applicant had requested a continuance last month and now they were stating they did not want to proceed at this time. He felt it was not in the town’s best interest to continue the matter on their own.

Attorney Talerman- stated that this was not a discretionary remand. The applicant appealed this to the Appeals Court and lost.

Sullivan moved to continue the application until January 31, 2008, seconded by Tibbetts, all in favor, unanimous.

Albert Bangert- asked that Attorney Talermna draft a letter to Attorney Ohrenberger.

Brian Sullivan- felt the Board could write the letter themselves.

Peter Morin- if the applicant did not show for the next hearing on January 31, 2008, he would make a motion to deny the application.

The Board returned to the Chapter 40B hearing on 44 Jericho Road:

John Diaz from Greenman and Penderson gave an overview of the traffic study:

John Diaz- he did his counts during February 2006

Edward Tibbetts- requested a study of the traffic be done during the summer months.

J. Diaz- looked at both the speed limits and travel speeds. There was about 400 to 450 feet of stopping. The pulling out distances was around 260 feet. Based on the existing use the site can generate over twelve hundred cars a day. There would be a reduction in traffic and about three more vehicles in the morning than currently.

Peter Morin- asked if the seating of the current restaurant was based on their common vic license.

E. Tibbetts- questioned if the restaurant had been used to full capacity.

Neil Duggan- asked how many seats were reflected on his certificate of occupancy. He was the person who would determine the seating not the Board of Selectman. He felt they might not be complying with parking requirements for a 450-seat restaurant.

E.Tibbetts- would like real numbers.

John Diaz- this would not affect the traffic.

Attorney Buckley- they would bring a chart on the numbers for the next meeting.

Steven Habeeb from Habeeb Associates- the building would have 24 units, eight units per floor on the three floors. His design was created from a seaside resort that the applicant showed him. It would be shingle style with parking on the ground level. There would be an elevator in the main center of the building with the ability to walk behind the building. The façade would be cedar shingles or clap boards.

Brian Sullivan- it’s a four story building with parking on the first floor. He asked would the height be 46 feet to the middle peak ridge.

J. Talerman- felt it might be higher.

Steve Habeeb- it was intended to be 46-feet. The design is not a town house style.

B. Sullivan- did he look at any other large buildings in Scituate, and suggested he look at the Lawson Building.

S. Habeeb- he drew inspiration from seaside resorts.

B. Sullivan- felt the current design of the building would block off the view of the water for people driving by. He would like to see the building broken up a bit.

Attorney Buckley- they did shift the building over to allow for views of the lighthouse when traveling down Jericho Road.

S. Habeeb- they had received positive feed back from the Design Review Committee and they would be continuing to work with them.

B. Sullivan- his preference would be to break up the building

E. Tibbetts- they have had projects in the past that have taken into consideration view easements.

Attorney Buckley- they did try and provide a view and walkway. They would not deed the walkway to the Town but it would be for public use.

Dan Ruiter of 23 Jericho Road- asked if the walkway joins the sidewalk.

Attorney Buckley- it will connect to all sidewalks.

A. Bangert- wanted to talked about the Board’s right to a cooling off period and how it had not begun.

Attorney Buckley- did not agree that the disposition had not occurred. The state had provisions prior to chapter 43B, it was approved, appealed and the applicant was prevented from moving forward. Legislation had changed so that the applicant could proceed at his own risk. His position was that the cooling off period started back in august of 2006.

Peter Morin- asked if he felt that 43B precedes the cooling off period.

Attorney Buckley- the policy is now 180 degrees from where it was supposed to be. He felt that the 40B was not part of the original project. He would like to Board to make a decision.

J. Talerman- the Housing Appeals Committee had ruled on this. The 43B does not say anything about affordable housing. The regulation is clear that the twelve-month cooling off period does apply. The critical fact to consider was that the court sent it back to the board, which he cannot deny. Mr. Talerman quoted from the Stanley Reality Holdings case. The change in public policy was to prevent frivolous abutter appeals in holding up projects. There was currently a pending chapter 40B application.

Peter Morin- he did not want the fact the Board open to send the message they intended to waive the cooling off period.

A. Bangert- was frustrated with the remand, depositions, and lawyer’s fees. There was so much going on that had nothing to do with affordable housing.

Attorney Buckley- clarified the remand hearing before the board did not contain any affordable housing aspects.

J. Talerman- asked if he would like to open that hearing.

Attorney Buckley- did not represent the applicant for that application.

A. Bangert- would like to continue everything next month.

Barry Pollack from Sullivan & Worcester Law Firm- wanted to clarify that Dichrisda had requested the remand. The remand was granted because the judge felt there were deficiencies with the first hearing.

J. Talerman- did not agree with that statement at all.

B. Pollack- said Attorney Talerman was not present in the court. Dichrsida asked for the remand.

A. Bangert- it was ordered by the court.

J. Talerman- on the town’s motion.

B. Pollack- talked about the objection that was made by Attorney Buckley.

A. Bangert- complimented the project for it’s affordable housing compents, the seacoast style, the walkway, new up to code residential building that will clean up the site. The project would increase the tax bases. He is not happy with scale of it, there is no open space and also has a block out of the views. There was no outside space. Would like it pulled back from the street.

Attorney Buckley- The ocean was a good open space.

B. Sullivan- did not share Mr. Bangert concerns with the rear line. He would like it pulled back and broken up. The height was just absurd. He would like the density reduced.

Sara Trezise- had issues with the garden style, has concerns with the marketability of the units, and would like them to consider some handicapped units.

Attorney Buckley- they conducted a marketability study in order to achieve their approval letter.

Attorney Buckley- the process the state has put in place ensures that they are marketable.

J. Talerman- there are reasons why we have 40B projects, because there has been a significant dip in the markets.

Brian Sullivan- there is a 68-unit project up for sale right now that abuts the dump and the railroad.

Peter Morin- talked about Attorney Pollack remarks. He wanted the record to show that the Board opened the remand hearing earlier and Mr. Pollack was present and did not leave the room.

E. Tibbetts- agreed with the concerns regarding the size and location to the road. Felt there was not a lot of sight line when pulling out of the site.

N. Duggan- the building was located in the velocity zone and needs to be on columns.

Attorney Buckley- felt they had not received all the comments from the Town Boards so they could not vote on the merits but could vote on the cooling off period.

J. Talerman- the board does have the ability to refuse to waive the cooling off period but he wanted to clarify that they are willing to work with him on the project.

Attorney Buckley- they would tweak the plan and come back. He would like to ask the Board to vote on the cooling off period then and not at a later time.

E. Tibbetts- would like to talk about peer review and comments at the next meeting.

Peter Morin- asked if Mr. Buckley was in contact with Attorney Ohrenberger.

Attorney Buckley- no

Bangert moved to continue the hearing to January 31, 2008, seconded by Trezise, all in favor, unanimous.

Tibbetts moved adjourn the hearing at 8:30 P.M, seconded by Morin, all in favor, unanimous.

Respectfully Submitted,

Nicole Harris
Administrative Assistant to the
Zoning Board of Appeals