MINUTES

JULY 25, 2002

Others Present: Ms. Harbottle, Town Planner; Atty. M. Hurley; Atty. R. Nylen, Mr. N. Murphy, Town Counsel Judith Cutler; Mr. C. Horne, Mr. D. Smith of Murphy Assocs.; Atty. Santos, Mr. P. Mirabito of Ross Engineering, Mr. Seery

See Sign-in list for names of others present for this meeting.

Capt. Flynn Estates: Continuation of Definitive Subdivision Plan Public Hearing

The Board had requested, at the July 11th Planning Board meeting, that the Applicant submit a letter requesting a continuance to a date and time certain (September 12th at 7:30 P.M.) along with an extension of the time to file the Decision with the Town Clerk (October 31). See the July 22nd letter from the Applicant's attorney, Michael Hayes, addressing the Board's request.

MOTION: Mrs. Foley Moved to continue the Public Hearing regarding the Capt. Flynn Estates Definitive Subdivision, 47A Ann Vinyl Road, to September 12, 2002 at 7:30 P.M. and to extend the time to file the Decision with the Town Clerk to October 31, 2002. [This action was taken in accordance with the letter dated July 22, 2002 from Atty. Michael Hayes, the Applicant's Representative, to the Planning Board.] Applicant: Charles W. & Phyllis Flynn. The Motion was Seconded by Mrs. Burbine and the vote on the Motion was a unanimous vote in favor of the Motion.

Mr. Limbacher said, "I don't have a problem with the vote to continue but what I would like to do is to send the Flynn's a letter indicating that we have continued this several times and that this is the last continuance that we will grant them. If they are not ready on Sept. 12th they can either withdraw the plan or we will deny it." The other members agreed with Mr. Limbacher. Ms. Harbottle will write the letter on behalf of the Board.

ACCOUNTING PROCEDURES:

MOTION: Motion duly Moved by Mr. Limbacher, Seconded by Mrs. Burbine, and voted unanimously to pay the following:

1. Herb Heidt ($60.00) for 6 copies of the zoning map.
2. RIAPA American Planning Association Region 1 Fall Conference ($155.00) registration for Ms. Harbottle.
3. Planners Book Service ($76.61) for books.

Atty. Maureen Hurley, Ohrenberger Associates, represented the Applicant. Atty. Hurley described the additional information she had submitted at the request of the Board. This material included a copy of an 1899 plan, affidavits from people who were familiar with the fact that the street existed on the ground prior to the Subdivision Control Law, affidavits from Paul Scott (DPW) and from Neil Murphy. Various aerial photographs were also submitted by Atty. Hurley. See file for this documentation.

The issue of access was discussed. Mrs. Burbine pointed out that the Fire Chief did not have a problem with the plan. See letter in file from the Fire Chief.

Ms. Harbottle reminded the Board that at the July 11th meeting on this Form A Atty. Ohrenberger had submitted some court cases that addressed approval of ANR plans. These cases appeared to be on point for the Garzik frontage/access situation.

Mr. Limbacher said he had not been present when this Form A was discussed at the July 11th meeting so he would not comment on the plan.

MOTION: Mrs. Burbine moved that the Planning Board vote to endorse as Approval Under the Subdivision Control Law not required a plan of land in the Town of Scituate located at 47 Ocean Avenue. Plan prepared for Owner, Charles J. & Lauren Garzik, by E.E.T., Inc. and dated may 28, 2002. Motion Seconded by Mrs. Foley and the vote was as follows: Mr. Warner, Mrs. Foley, Mrs. Brandow, and Mrs. Burbine voted in favor of the Motion. Mr. Limbacher voted 'present'.

Mr. Warner said , "Laura and I met with Mr. Steve Cecil for the purpose of discussing the funding for streetscape improvements for Greenbush and N. Scituate. Selectman Jim Pollard joined us. Approximately $1 million dollars was appropriated for N. Scituate and $1.5 million was appropriated for Greenbush. The purpose of the meeting was to discuss, with Steve Cecil, the idea of someone working on behalf of the Town in terms of providing guidance for design of the improvements; and also to make sure that the improvements the 'T' is making in those areas are consistent with the Town improvements. We also talked about Greenbush and the fact that it is about 38-40 percent developed and if there is going to be pressures for change given the fact that the Town sewer being extended there - this would be an opportunity not only for streetscape improvements, but a chance to look at a planning study on how those improvements might work with respect to open space and access. Jim Pollard thought it made sense to have someone representing the Town's interests and also to have someone to work with the 'T' so that the improvements are going down a parallel track and would compliment each other."

Ms. Harbottle said, "I think we were talking about looking at Greenbush and N. Scituate as 'villages' and trying to think of ways how to create access between MBTA parking and the village so that they can work together and support each other. This requires a lot of long range planning. I think that most of you think that is important. The problem is that if the million dollars and the million and a half dollars come in and the Planning Board is not involved there will be a lot less chance of a comprehensive long range plan. Steve is working for Hingham on their streetscape with the 'T' so it seems like he would be a good type of person (not necessarily him) to have."

Mr. Warner added, "What is important about this whole process is - two and a half million dollars is a lot of money for streetscape improvements. Streetscape improvements really are not that simple. It is a matter of tree plantings, sidewalks, lighting, open space connections, parking, pedestrian circulation, etc. When you look at N. Scituate and Greenbush and those issues - it is not something that can be solved easily so it would be very beneficial to have somebody who has a lot of expertise in that area who also has a relationship and is already working with the 'T' for other towns. It would be worthwhile to have someone like Steve representing the Town. He came up with an idea that is difficult to explain in words so we thought it would be good idea to have Steve make a presentation to the Selectmen. He could tell what he would do; tell us what other towns have done; and show a slide show of streetscape improvements."

Mr. Limbacher asked, "Are we suggesting that out of this bucket of money part of it will be given to the Planning Board to manage?" Mr. Warner replied, "No. We are suggesting that the idea needs to be embraced and that the Selectmen should hire somebody like this." Mr. Limbacher said, "I was just trying to figure out who is managing the money." Mr. Warner replied, "The Selectmen. I think Jim Pollard will sponsor it. He will get it on the Selectmen's Agenda."

Mrs. Burbine said, "There are many things that the Planning Board has not been part of with the 'T'. I am wondering if before we go too much further if we could have a joint meeting between us and the Selectmen. Have it as a round table discussion so that neither Board is in charge. They can explain what and why they have done what they have done. I don't want it to be an adversarial thing."

Mr. Limbacher said, "Before that meeting I would like to bring in Steve Cecil and talk about the streetscape." Mr. Warner said, " Steve could present a lot of very positive issues and a lot of insight into this whole process." Mrs. Burbine said, "Have the meeting with Steve but have it with all of us and all of them in a round table presentation. It would have to be a posted meeting which could be held in the Library."

Mrs. Foley asked, "Is there a time frame when the money must be spent?" Mr. Limbacher replied, "It think it is 3 years."

The members asked Mr. Warner to try to set up this meeting with Steve Cecil and the Selectmen. Mr. Warner said, "For Steve to put together a presentation representing Scituate's issues it will cost $2,000." Mr. Limbacher said, "I don't have any problem with that. We could get the $2,000. back if Steve gets the contract." Mrs. Burbine asked, "Could we get a voucher from EO 418?"

Ms. Harbottle said "That might be the best bet for money." She and Mrs. Burbine explained EO 418. Mrs. Burbine said that she would call Mr. Bill Clark, MAPC, about this.

MOTION: Mrs. Foley Moved that the Planning Board vote to go into Executive Session to discuss pending litigation and return to Regular Session at the end of Executive Session. Motion Seconded by Mrs. Burbine. A roll call vote was taken with Mr. Warner, Mr. Limbacher, Mrs. Foley, Mrs. Brandow, and Mrs. Burbine all voting 'Aye' to indicate that they were in favor of the Motion.

MOTION: Mr. Limbacher Moved that the Planning Board vote to go out of Executive Session and return to Regular Session. Mrs. Burbine Seconded the Motion. A Roll Call vote was taken with Mr. Warner, Mr. Limbacher, Mrs. Foley, Mrs. Brandow, and Mrs. Burbine all voting 'Aye' to indicate that they were in favor of the Motion.

Atty. R. Nylen and Atty. M. Hurley, the Applicant's Attorneys, were present along with Mr. Neil Murphy, the Applicant's Engineer. Town Counsel, Judith Cutler, was present. See sign-in list for names of others present for this meeting.

Mr. Warner said, "The Applicant was to have submitted, in response to our last meeting, a complete set of plans to us by July 11th. We have received those plans and we have circulated them to the DPW. The Planner has reviewed them and unfortunately the plans are not complete. That is where we are at this point."

Atty. Nylen said, "The Public Hearing is closed but as a point of information we did receive the DPW comments this week (yesterday). So we are addressing those. You have several options that are available to you. Are you meeting in August?"

The Chair and the Planner explained the August meeting schedule noting that the August 7th meeting has been set aside as a Public Hearing to review amendments to the Subdivision Regulations. A meeting has been scheduled for August 22nd but due to vacation schedules the whole Board will not be available on that date. The next time the entire Board will be present is September 12th.

Atty. Nylen said, "In looking at this - there is a laundry list from the DPW. They say the plans are incomplete but it does not appear that substantively there are issues. Is this something that you are going to discuss this evening in terms of Conditions? What is the Board's pleasure at this point?"

Mrs. Foley said, "I think we will do them in September."

Mr. Limbacher said, "I think what Chip is suggesting is - is there a way that we would condition any possible approval on having the plans modified. We will not do that."

Atty. Nylen said, "I understand that you are not going to take any formal action until you have the plans completed. I have a different question - will there be a general discussion in terms of the Conditions before you take your formal vote in August or September?"

Mr. Warner asked the Board, "Is there an interest in doing that? There is a limitation on the time for doing that."

Mr. Limbacher replied, "To the extent that we have the time, this is a scheduled meeting and we have the majority of the Board here. I don't have a problem."

Mrs. Foley said, "I thought we were first going to ask for a date for the time to file." Mr. Warner said, "We can do that. If we do have a discussion on the Conditions tonight it would be limited to a very short period of time." Mrs. Burbine added, "I think that the first thing we need to do is to come up with a date certain when we are going to meet and a date certain to file. We are looking at September 12th for a discussion with a date to file of September 30th. Is this agreeable to the applicant? Yes or no?"

Atty. Nylen said, "That was why I was asking if discussion would take place before hand. From my review of the DPW letter we are talking about details. Details can be put on the plan within the next two weeks and can be resubmitted to the DPW. I am not sure why so much time is needed."

Mrs. Burbine replied, "Because we all won't be here. One of the things that I think we need to understand here - we had asked the Applicant that we would have a finished plan on July 1lth. It was supposed to be totally complete. That exercise is the responsibility of this Board; that exercise is the responsibility of the Applicant." [Mrs. Burbine explained the August meeting schedule.] If you want a fair hearing to complete this it will be the 12th. The 12th of September is when we will all be here again. I think we all agree that there won't be any more discussion until we have a date certain to finish this."

Mrs. Foley said, "We already discussed this a couple of weeks ago that some of us will not be around at the end of August."

Atty. Nylen said, "The reason we picked the 11th was so there would be plenty of time to hear feedback so we would be ready to discuss this this evening but we did not get the DPW material until last night at 5 o'clock."

Mr. Limbacher said, "The operative point was that July 11th was the date that the review started but what was provided on the 11th was incomplete."

Atty. Hurley explained that a lot of work was done on this project e.g. Homeowner's Association Agreement, Operations & Maintenance Plan, Conservation Restriction. She pointed out that even though all of that work was done by the 11th she had not received feedback on the Conservation Restriction or the Homeowner's Association Agreement. Atty. Hurley said some comments were received from Dave Nyman on those documents.

Atty. Hurley added, "A lot of work was done on this. Yes, we have worked really hard. The Applicant has worked really hard. This should have been a really nice moment - to say that we are here and we have done what you wanted. We are at peace with this thing. Unfortunately there were some details missing. My understanding is that they are really minor details. In the past what has happened is that the Board has not endorsed a plan until everything has been provided. For the last 3 subdivisions that I have been before the Board that is what was done. We work together during the time you approve it and the time that it is actually endorsed. That is the power that you have over the Applicant. You don't endorse. I just want to say that a lot of work went into accommodating the Board. I know that Neil's office has spent hours and hours getting the plan together for the Board. Maybe there are a few details missing but there has been a lot of work done to accommodate the Board."

Mrs. Foley said, "This Board accommodated you by closing the Hearing. We were prepared to go forward because you were going to have the plans ready by July 11th which was the drop dead date."

Mr. Limbacher said, "I think we have spent a lot of time but I think we are there - in the final legs of where we need to be to get the thing done and conditioned. I think we are there. We have to look at when the Board is available so we can come back up and complete the project."

Town Counsel, Judith Cutler, said, "In the first place this is not a usual subdivision plan. There have been numerous adjustments and changes that have gone on over the last several months, especially in trying to deal with the drainage issues. What happens is that when each successive plan is produced something shifts, something changes, notes are no longer applicable and new notes have to be put on. Just the sheer time it takes to go through this one by one - both on your side and the Town's side - it is really important that the Board have that completed step and know that everything is there that we all talked about. Otherwise it can't come up in a list of Conditions. We have to know that the plan complies with what we all talked about. It is imperative that the Board have that information in order to be able to make a decision. If it comes back and it is technically in order then the other Conditions shouldn't be that difficult. I think that what we are trying to do is to create an orderly process and that will have the most impact and effect on the end result."

Atty. Nylen said, "We would like to be in front of the entire Board so we would request that the deliberations will take place on September 12th. If by some strange quirk because we all know what can happen with vacations and it could happen before then…..We accept that the time will be the 12th. I would ask for the 20th of September for filing the Decision. Would that be agreeable?"

Mr. Warner said, "So you are proposing that the time to file is September 20th."
Atty. Nylen replied, "Yes. So you are having the meeting on September 12th and we will grant an extension to the 20th."

MOTION: Move to accept the request of the Applicant's Representative, Atty. R. Nylen, to extend the time to file the Decision on this application with the Town Clerk to September 20, 2002. [This action was taken in accordance with the request made at the July 25th meeting by the Applicant's Representative, Atty. R. Nylen, and in accordance with the letter requesting said extension signed by Atty. Nylen at the July 25th meeting.] Motion Moved by Mrs. Burbine, Seconded by Mrs. Foley, and the vote was a unanimous vote in favor of the Motion.

There was a brief discussion about the Homeowner's Association Agreement and the Operation and Maintenance Plan.

Mr. Warner said that the changes needed to the plans are summarized in the DPW memo

Mr. Limbacher said he had some comments on the Homeowner's Agreement and the Conservation Restriction which he will give to Ms. Harbottle.

Mrs. Foley asked, "Aren't we supposed to get a separate plan for easements?" Atty. Nylen referred Mrs. Foley to Sheets 3 and 4.

Mr. Warner said, "The other thing is the date when we want to have the complete plans filed." Various dates were suggested. One was August 28th. Ms. Harbottle requested an earlier date.

Atty. Nylen asked Mr. Murphy for his comments on when the plans could be revised. Mr. Murphy replied, "When you go through the list it looks quite extensive. We went through it today and I believe we made every single change on the list. There are probably 70% that we disagree with but we made the changes anyway. We will review it with the DPW obviously."

Atty. Nylen said, "I would like to make the date to have the complete plan in by August 16th so that the DPW will have time to look at it. If Neil is as close as he says then that should not be a problem." Mr. Warner agreed with the August 16th date.

Atty. Nylen said, "Maybe for the Conservation Restriction we could do a later date. I don't know what Judith's schedule is as to when she get her comments to us." Ms. Cutler said, "I will have comments back to you by that date (the 28th )." Atty. Nylen added, "And that includes the Homeowner's Agreement."

Mr. Warner said, "Judith will give you a copy of the draft Conditions. It is a draft. It is not complete." Town Counsel agreed and again pointed out that the Conditions are draft Conditions and may not be the complete list of Conditions.

Mr. Limbacher questioned whether it would be necessary to hold another Scenic Road Act hearing because there has been a change to the driveway. Ms. Harbottle will look into this.

Mr. Christopher Horne, the Applicant, was present along with his engineer, Dan Smith from Murphy Associates. See sign-in list for names of others present for this Hearing.

Mr. Limbacher said that he did not sit on this application when it came before the ZBA so he will be acting on Mr. Horne's application before the Planning Board.

Mr. Horne said, "We are working with the neighbors on the buffer. We have used residential setbacks on this piece of property instead of the business zone. I also submitted a landscape plan the other day. We have a lighting plan. Relative to the signage - at the entrance of the driveway there will be 4' high stone wall with a piece of granite that says Scituate Tennis Club. That will be the only sign on the property. It will have a light on it. There is a proposed sketch in the plans of the sign and the light. Sheet A-2 has the sign on it."

Mr. Horne said, "The exterior lighting - on the two stone walls there will be two small lanterns. As you come up there is lighting on poles which is directed down. On the building itself you have the emergency door in the back on the Cohasset side. It will be a wall pack on the wall for the emergency door. On the elevation parallel to Rte. 3A you see four dots. They are lights under a canopy for a walkway so you can walk along the area. They are directed down. At the entrance there is another direct down light by the door and one more emergency light. All the lights are scheduled to go off when we close except for this back one here (emergency lighting). As you come up the road there is lighting here and here. I think those lights are 12 feet high."

The Board asked Mr. Horne to provide additional copies of the landscape plan so that each member would have a complete set of plans.

Mr. Horne explained the landscaping plan. See plan for details. He said, "As you come up the drive there is landscaping around the two stone walls. This is a low juniper here. As you come along the parking area on the left and right sides here we have the same type of plantings. Around the parking area here we have American Holly and Norwell Spruce and Colorado Spruce so there will be thicker coverage for the parking area. We have also been talking to the abutters. We will put that same type of growth down here.

Mr. Horne continued to describe the landscaping plan. "In the back we have wetlands and we will have blueberry and so forth. Our clearing of the site is 5 feet beyond the building area. Most of the area left here is pretty thick woods. We are keeping it very tight to the building. We have a very large piece of ledge here and we will be snipping off a little piece of that. There will be a lot of screening. We are considering how it will impact the neighbors. There is a cell tower beside us and there are some shrubs and so forth growing around that. The dumpster is shown on one of the site plans. There will be shrubs around that. We moved it over here out of the way. I will submit extra copies of the landscape plans to you. You have one now but I will give you additional copies."

Mr. Horne explained the floor plans for his building noting that the areas were handicap accessible. He described the various rooms and the uses for each and he also described the entrances and exits. See plans for details. Mr. Horne said the building was a fully sprinkled building and he said he talked to the Fire Chief and the Fire Chief indicated he did not have a problem with the plans.

Mrs. Foley asked about the handicap lift and Mr. Horne described how it worked noting that the handicap lift to the second floor was electronically controlled with a key. Handicap access was done according to pertinent codes.

Mrs. Foley had questions about the square footage of the floors in the building and Mr. Horne described it in detail. See plans for details.

Mr. Horne discussed the business plan. He said, "We have 375 members now and we are hoping to get up to 500. The membership runs from September to September (a one-year membership). There are no monthly memberships. People must join for a year. There are no walk-ons because it is a private club. The hours of operation will be from 6:00 A.M. to about 10:30 P.M. during the week and on the weekends the hours would be from 7:00 A.M. to 9:00 P.M. There is less business in the summer. The weight and cardio room is about 3800 S.F. and takes up basically the whole second floor of the building except for the office area. There are gutters to control the runoff of the water on the roof."

Mr. Limbacher asked for clarification on the dates of plans and drainage calculations. Mr. Smith said that the latest set of plans is dated 7/3 and the drainage calculations should be dated 6/24 not 6/21.

Mr. Horne showed the Board information on the signage and lighting which was provided on the plans. Regarding the lighting he noted the following: location of two small lanterns marking the entrance, a square box lamp on a pole, wall pack on building lighting the emergency door, four lights for walking under canopy, lighting for the parking lot and roadway. He said that the lighting would be focused downward and he said that all the lights would be turned off at closing except for the security lighting. See plans for details on signage and lighting.

The Board told Mr. Horne to provide the Board with a complete set of plans e.g. lighting and landscape plans since they appeared to be missing from the submission.

Ms. Harbottle said she spelled out the issues in her memo. She said that there needs to be a definition of what uses, in addition to the tennis use, will be permitted on the site by the ZBA e.g. squash court, weight room. She suggested that the Board should have that information before going too far with the site plan because the uses will affect the parking and the septic system. Ms. Harbottle added that the site was a tough site to deal with because of the ledge and because there is no water going by the site so it will have to be brought up Rte. 3A.

Mr. Horne said there would be an 8" water line and fire hydrant as shown on the plans.

He said he has discussed these issues with the Fire Chief.

Mr. Horne also said he was talking with the State about the road opening permit for Rte. 3A and expected approval within the next 30 days. He said that the State had previously approved a road opening permit for the common driveway for this property but his road would have a greater radius and needs State approval. He said that there are no problems with sight distances (over 1000 feet of sight line available) and the sight lines will be better than they were for the common driveway because the tennis court driveway will be wider.

Ms. Harbottle discussed parking requirements. She said that the Building Commissioner /ZEO, Neil Duggan, would address this issue and she felt that Mr. Horne's project would come under the heading of 'place of assembly'. Mr. Horne said he has been talking with Mr. Duggan on this issue. Mr. Warner said that parking is a very important topic for the
Planning Board.

Ms. Harbottle suggested the Board may want to look at the size of the lighting. She thought that a 12' pole may be high. Ms. Harbottle said that the Design Review Committee (DRC) looked at it and while they were not uncomfortable with it they wanted it to be a green color to blend in with the surroundings.

Ms. Harbottle also pointed out that the DPW wanted the applicant to be aware of the changes to the Henry Turner Bailey Road intersection which will be made in conjunction with the MBTA plans for the Greenbush line. This is something that Mass Highway will have to deal with it. Mr. Horne indicated that he knew about the changes.

Mr. Horne said, "I talked to Jennifer (Health Agent). There is no definition under Title 5 for tennis courts. The gym is by lockers. I gave her ten year averages from my tennis club and also a five year average from the Bay State Gym. I have given her a lot of background to help her out. I feel confident that it will not be a problem."

Mr. Horne said that the architect suggested that a sand tone would work for the building color and he said he was working with abutters on this issue.

Mr. Smith, Engineer, described the drainage. See plans and drainage information submitted for details. Mr. Smith described the existing drainage on the site noting the direction of the flows. He also explained the program he used for the calculations. Mr. Smith said that the soils in the area are rated Class C which means that a lot of the rain water that hits there runs off, so the site already has a lot of pre-existing runoff. Mr. Smith pointed out that the lot was partially pre-developed with houses, driveways, etc.

Mr. Smith then described the post drainage condition. He said, "In the post condition we have a lot more roof area. The way I have it laid out now is that half of the roof is collected in gutters and channeled to pipes and goes to a bank of chambers over here. They are pretty big and they provide a lot of underground storage. The other half is collected and goes to chambers and the two come together at a manhole here. In addition the paving in the back is also collected in catch basins and also runs to this pond. It discharges over here near the ledge There is a concrete barrier with a weir to control the flows. So all the discharge from the site ends up coming down through here. The water goes down to the wetlands down here. So there are chambers and the pond and we meet the correct pre and post conditions meaning that post is less than pre. I did get Dave's comments late yesterday and I did not get a chance to review them. I spoke to Dave today and I have come up with some ideas but I will need some time to respond."

Mr. David Nyman, ENSR, said, "This is the backup plan for the drainage calcs which show the drainage areas. It does show the system being over here. On the site plan package that you have it shows the chamber over here but if you look at the way the watershed comes down as far as the calculations are concerned it doesn't matter whether it is there or there because it is in the right watershed and the calculations are on the correct path. There are a number of things in our report, technical things, that they must consider. [See July 24th report from ENSR.]They may have to modify the shape of things a little bit. I am sure they will be able to address the things in our report. The major thing that we are concerned with - first of all the site does have a number of outcrops on it and they had to search for a place for the septic system to be located which sufficient soils. They show the various drainage facilities in pockets in the ledge but there are no supporting soils data regarding the infiltration, chambers, and detention basin to show that they are going to work on the site. They do need to submit some supporting soils data and I understand that that is in the process of being done."

Mr. Nyman continued, "One of the things I noticed in terms of the overall profile of the system is that the chambers are basically at the same elevation as the detention basin. So in his calculations he needs to account for that fact and he has to address the roof runoff. He may either have to adjust his model to account for the fact that the pipes may be operating under a surcharge condition at the outlet or he can artificially treat all three of these units as one pond and run the model that way. He will have to go through another generation of the model."

Mr. Nyman said, "When I looked at the site I was concerned about the conditions at this intersection. Right now there is a steep driveway that comes down almost to the point of the road. There is a little flattening out as you approach the roadway. It looks like in a heavy storm the runoff may go right down that road and possibly out onto Rte. 3A. Even in small storms there is evidence that the runoff comes along this shoulder. There is a berm along the highway and behind the berm it is fairly flat. It looks like the water comes along that flat shoulder area, runs across the apron of this driveway, and out into here. Water runs down the driveway, turns the corner, and goes out into here. It is fine where it ends up going but you may end up with some water running across the toe of the driveway. I am wondering if there is someway that could be addressed - some way to intercept some of the water. I notice that on the landscaping plans they brought tonight that they are showing walls constructed out here and those may interfere with moving that water around. I suspect that the State may not allow the construction of those walls."

Mr. Nyman spoke in detail about the direction of the flow and the workings of the various drainage structures. Some of the items he mentioned are: "The other thing is that they aren't going to be required to follow the DEP Stormwater Policy and treat runoff from the surfaces from the site. A portion of the driveway can't possibly be directed into the detention basin so this is coming down untreated. That can be offset somewhat because this is technically a redevelopment site and under the Policy there is already pavement there so there is a bit of latitude that comes forward in meeting the standards of the Policy. If possible they should try to meet all the standards. I would like to see them address this piece of the road down here. We would like to see additional detail on the design of the berm on the down slope side of the basin. If you look at the plans there is a retaining wall on the uphill side of the basin. The basin butts up against the wall and the wall forms part of the pond embankment on the uphill side. Then they have a slope going down a certain distance and another retaining wall. So there is a retaining wall down in this area. I would like to see a cross section through here. I would like to see more detail on how their concrete weir proposed structure ties in with that retaining wall. There needs to be some detailing of how all these things tie together. Also we have asked for detail on the stability and the capacity of the spillway. There is a fairly steep slope. There is the possibility for erosion there as it leaves the spillway. We are looking at a possibility of somehow dispersing that flow. In the calculations - they hydrographically added this discharge and this discharge to analyze pre and post flow. They really should not do this at this point. I don't think there is going to be a problem because I think they have overestimated the drainage area coming to this point. When they correct that you will find that pre and post are controlled at both of these points. They need to submit calculations to verify that. Where the water runs into the wetlands here, here, and here at this point - I think it is okay for them to hydrograph it. That is sort of the highlights."

Mr. Warner pointed out that the time scheduled to discuss this issue this evening has run out so the hearing would have to be continued. There was a discussion regarding the date to continue. September 12th was suggested as the date.

Mr. Horne said he is notified by the MBTA that he had to leave his existing location by December 1st so he would like to have the hearing continued as quickly as possible. He
agreed to the September 12th date.

Mr. Limbacher suggested that the Board schedule the continuance to September 12th at 10:00 P.M. and he suggested that the Planning Board should look at the application as submitted by Mr. Horne and review the uses as proposed by Mr. Horne - independent of what happens with the ZBA. If the uses approved by the ZBA were different than those before the Planning Board then Mr. Horne may have to come in for a modification. It was noted that Mr. Horne's application would be reviewed by the ZBA on August 15th and by Conservation on August 7th.

MOTION: Mrs. Foley Moved that the Planning Board vote to continue the Site Plan Special Permit Public Hearing regarding an indoor tennis club at 1004 Chief Justice Cushing Highway to September 12, 2002 (10:00 P.M.). Applicant: Christopher Horne. Property Owner: King K. Corp. Motion Seconded by Mrs. Burbine and the vote was a unanimous vote in favor of the Motion.

Atty. Joseph R. Santos, Gallivan & Santos, introduced himself and said he was representing the Applicant. Mr. Paul Mirabito, the Applicant's engineer was also present. See sign-in list for names of others present for this meeting.

Atty. Santos read a detailed statement aloud which described the past history of the site at 126 First Parish Rd. and which described the scope of the project along with the reasons why the application meets the criteria found in the Flood Plain & Watershed Protection District Bylaw. Atty. Santos' statement can be found in the file. Also, a copy of the September 20, 2001 ZBA Decision regarding a change of a non-conforming use (granted) at 126 First Parish Rd. was attached to Atty. Santos' statement. Please see file for all this documentation.

Atty. Santos pointed out that the application before the Board was just for the Flood Plain Special Permit - not for a Site Plan Special Permit.

Mr. Mirabito, Ross Engineering Company, explained the plan to the Board. See file for a copy of the plans submitted. Mr. Mirabito noted that the outline of the 13 acre property is shown in yellow. The property consists of 9.6 + acres lying in the Flood Plain and 3.4 + acres of upland. Mr. Mirabito showed the Board the location of the on-site tidal brook (Satuit Brook to the rear of the fence line at the rear of the property) along with the wetland areas. Mr. Mirabito said there would be no work done in the area near the Brook.

Mr. Mirabito continued his presentation by noting that the FEMA flood zone was shown in pink. The green line represents the Town of Scituate Flood Plain line.

Mr. Mirabito said, "We are proposing to keep these two buildings on site. One is the existing service station and the other is the large red garage building near the Scituate Post Office building. All the other buildings on the site will be razed. The square footage of the two buildings that will be retaining plus the square footage of the new building will be less than the sum square footage of the buildings presently existing on the site."

Ms. Harbottle said, "When I reviewed this plan I was not privy to Mr. Duggan's interpretation. We have had some discussions and he interprets that watercourse to be the area within the Flood Plain - the area that would be flooded at some time. There will be some changes in that area because buildings will be demolished, foundations will have to be filled in. They are only showing the 23' line. I think there was probably a plan provided to the ZBA that might have been a more detailed plan."

Atty. Santos said, "We will give you that information when we come before this Board for Site Plan Approval."

Ms. Harbottle again explained Mr. Duggan's interpretation of the plan and she said that she thought the plan before the Planning Board was missing a lot of important information.

Atty. Santos said, "We will be before you for site plan review. This evening we are only here for a special permit. We want to have the special permit from this Board before the Applicant goes to the expense of preparing a detailed site plan later."

Mrs. Foley asked about the status of the project with the Conservation Commission. Mr. Mirabito said the wetland line was approved (see note on plan).

Mrs. Foley asked, "So you are not going to show us any drainage, right?" Atty. Santos replied, "We will be before you for site plan review, hopefully very quickly." Mr. Mirabito added, "We have not designed the site plan yet. First we had to get approval from the ZBA; second was to come to you for the special permit for substantial improvement; then we will do the site plan." Atty. Santos said, "Everything will be on the site plan. We will show everything your Bylaw requires on the site plan."

Mr. Limbacher said, "You are here for a Special Permit and there are 3 criteria.
Atty. Santos replied, "And we have met them."

Mrs. Foley asked for information on the proposed new building. Mr. James Seery, President of 126 First Parish Rd. Inc. said that the showroom will be towards the street and then there will be 4 steps down to the lower area (because of the slope of the land).

Mr. Mirabito showed the Board the location of the buildings that will remain on the site and the buildings that will be removed.

Mrs. Brandow indicated she had no questions at this point.

Mrs. Burbine said, "I am concerned and perturbed. I am reading the Criteria. We only have an outline of the building. We don't have the height or the dimensions. We really have nothing. I think that this Board deserves better. Normally when a Flood Plain Special Permit comes before us we know what the building will be like. We have information on the height, the setbacks, where the driveway will be, where the parking spaces are. I understand that you are coming later for site plan review but I can not agree to what this is. There is not enough information on this plan for me to make a judgment and I think that you are doing us a disservice by not showing us more information."

Mr. Limbacher said, "I think the approach they have taken will address all the steps. Usually we get the site plan information at the same time. That allows us to go through and get a better sense of what it will be. Under site plan review I have a lot of issues.
I agree with Mr. Santos that the 3 criteria have been met."

Mr. Warner read sections of the Bylaw aloud (470.6.F) - "any improvements shall not affect eh natural drainage patterns of the watercourse". He asked, "The watercourse is defined by Neil as all the land under the pink line - is that correct? I want to know that the land in that area is not going to be improved at all." {Atty. Santos again said that the Board will receive additional information when the Applicant comes before the Board for site plan review.} Mr. Warner said, "If I make an approval now on the basis that it is not affecting the drainage without sufficient information…." Atty. Santos interjected, "The engineer has said that there will be no changes to the natural drainage course. We are not going to change any grades."

Mr. Warner asked, "Is it going to be paved? Is it paved now?" Mr. Seery said it was paved right back to the fence." Mr. Warner said, "It would be nice to see that on the plan. If you are paving addition areas that could change the drainage patterns."

Mr. Mirabito said he had a very long conversation with Neil Duggan on Tuesday at which time Mr. Duggan said that if a structure is going to be razed and reconstructed it is considered to be substantial improvement. So that is the reason the application is before the Planning Board. Mr. Mirabito said that Mr. Duggan was very clear that the plans show that the proposal does not affect the watercourse.

Mr. Mirabito described the natural drainage patterns on the site and again said there would be no changes. Mr. Warner disagreed with Mr. Mirabito.

There was a discussion on the definition of a watercourse. Mr. Mirabito said Mr. Duggan said there was no clear definition of a watercourse. Atty. Santos said that the courts say if there is no definition in the Zoning Bylaw then the dictionary should be used and the definition in the dictionary is 'body of a stream'. Ms. Harbottle said the definition was 'anything anything that carries water'. Ms. Harbottle added that she, Vinnie Kalishes, and Neil Duggan discussed this issue and she thought Mr. Duggan said that the watercourse should be the boundaries of the flood plain.
Mrs. Foley asked, "Are you calling the Brook a tidal brook?" Mr. Mirabito replied, "Yes. I asked the Engineering Department about this. They told me that it was a tidal brook. I said that it was a tidal brook when I went before the Conservation Commission and the ZBA. Conservation calls it a tidal brook. This plan was reviewed by DEP as well. DEP asked us to show additional resource areas on the plan, which we did, and it was approved."

Mrs. Foley and Mr. Mirabito discussed flood plain lines, 100-year floods, and elevations regarding the proposed building. Mr. Mirabito noted that the proposed building is above EL 23 therefore it is outside the 100-year elevation.

Mrs. Foley said, "We are here about the Town of Scituate Flood Plain, not bout the FEMA Flood Plain. The State Building Code addresses what you have to do." Mr. Mirabito replied, "Section 470.6 talks about the FEMA Flood Plain and not the Town of Scituate Flood Plain. It talks about National Flood Insurance programs." Mrs. Foley said, "But this is in the Town of Scituate Flood Plain. The National Flood Insurance is separate from the Town of Scituate Flood Plain. This property falls within the Town of Scituate Flood Plain & Watershed District. We are not just talking about the federal line. We are talking about this line here from EL 23 to 30. That is where the Town of Scituate Flood Plain falls." Mr. Mirabito said, "The zoning map shows the Town of Scituate line as being at EL 30."

Atty. Santos said, "We are here asking for a special permit under these 3 criteria that your Bylaw spells out. [Atty. Santos read the 3 criteria aloud.] As I read criteria #1 - the requirements are the National Flood Insurance program and the provisions of the Flood Insurance District. The National Flood Insurance program sets up certain districts. We have to meet the requirements; we have met them That is all your Bylaw requires."
Mrs. Foley replied, "No. This Bylaw also incorporates the Flood Plain & Watershed Protection District. We are here for that. You know that."

Mr. Mirabito said, "Number #1 does talk about the Flood Insurance District. Section 480 has a definition of the Flood Insurance District. [Mr. Mirabito read the definition aloud.] Those are the federal flood maps."

Mrs. Foley asked, "So why are you in front of us if it doesn't involve the Town of Scituate Flood Plain? You are in front of this Board because you are going to work between EL 23 and 30 which is the Town of Scituate Flood Plain. It goes to EL 30. You want a flood plain special permit which is under the Town zoning." Mr. Mirabito replied, "The reason we are here is because of your Zoning Bylaw. It says that if we are in the Town of Scituate Flood Plain District, which we are, and if we are doing a substantial improvement to a structure we have to file for a Special Permit to allow that substantial improvement to occur. However, that section clearly states standards for review and those standards for review…."

Mr. Warner interjected, "Do you have Section 470.2 (the new one is 480.2). It addresses Relation to Other Districts." Mrs. Foley again pointed out that there were two districts involved - the Town of Scituate Flood Plain and the Flood Insurance District. She said that the reason the application is before the Board is because work is being conducted in the Town of Scituate Flood Plain. Mr. Warner read aloud the wording of Section 480.2 (Relation to Other Districts).

The discussion continued for some time regarding the provisions of the two districts and whether the applicant was doing work in both districts or only one and the criteria for the Special Permit. Atty. Santos insisted that the application meets the criteria in the Bylaw. Mrs. Foley emphasized the fact that the applicant has asked for a Special Permit under the Town of Scituate Flood Plain. She said that work would not be done within the Federal Insurance area so the applicant did not have to meet the Federal Insurance criteria.

Mrs. Foley said, "If he is going to work within the Town of Scituate flood plain then he has to meet the base flood elevations for the first floor." Mr. Mirabito said, "We are above EL 23 but below EL 30. When you read Section 470 (the whole Section) there are 3 flood districts - the Flood Plain & Watershed Protection District, the Flood Insurance District, the Federal Flood District. What we are saying is this - under Section 470.6 it says that if you are doing work in the Scituate Flood Plain (doing work below EL 30) we have to come before you for a Special Permit to do the work. Section 470.6 gives you three criteria that you have to meet. Example: if we were doing work below EL 23 we would have specific construction guidelines to build that foundation under State Building Code. The Town of Scituate Zoning Bylaw for doing work in the Flood Plain & Watershed District does not have construction standards for building. This Section F clearly tells you that the building, if it is in the Flood Plain & Watershed Protection District, has to meet the State Building Code and the requirements of the Flood Insurance District.".

Mrs. Foley said, "I am looking at Section 470.5 Permitted Uses within the Town of Scituate Flood Plain & Watershed Protection District and you are looking at substantial improvement. I want to know what the first floor elevation is going to be and why are you not putting it above base flood." Mr. Mirabito replied, "If we put that building at EL 30 it would be 8 or 9 feet above the ground and there would have to be 12 feet of fill over the entire rear of that property." Atty. Santos said, "It would create a dam so that your street would not be able to flow over our land to the Brook."

Mrs. Foley said, "You are asking us for a Flood Plain Special Permit but you don't want to give us any information." Atty. Santos replied, "We want to give you everything your Bylaw calls for." Ms. Harbottle agreed that the Board is usually provided with detailed information when an applicant is looking for a Flood Plain Special Permit.

Mr. Warner asked, "Is there any reason why you didn't do the site plan review simultaneously?" Mr. Mirabito replied, "Because, as I mentioned earlier, for commercial property and type of use we are having we had to go to the ZBA because this is a commercial use in a residential area. We had to get a Special Permit from the ZBA to allow it. That was first step. The second step is to get the Special Permit under Section 470.6 to allow this to happen as well. Then we will proceed with the site plan. All I am saying is that under 470.6.F. there are three specific standards for review. [Mr. Mirabito read the 3 items aloud and indicated how the application met the requirements.] Whether you review the site plan or not the Building Code instructs the Building Commissioner to make sure that the building meets zoning and the requirements of the National Flood Insurance Program. This section has been in here for a long time. We clearly meet the requirements for the Special Permit under this section."

Atty. Santos said, "Could I respectfully ask that Town Counsel review this by a certain date?" Ms. Harbottle explained that the Applicant would be asked to pay for the review by Town Counsel. Mr. Warner asked, "Would you be willing to pay for the review?" Atty. Santos said to his client, "They want you to pay to have their Town Counsel look at this to see if our position is correct. Essentially whether the three criteria put forth in your Bylaw are what we have to meet to qualify for the Special Permit. We are not asking for site plan review. We are not asking for anything else." Mr. Warner said, "I don't know if it is necessary to ask Town Counsel to review this. You are saying one thing about what the Building Commissioner said about the definition. [Atty. Santos said that he did not meet with the Building Commission, Mr. Mirabito did.] Mr. Mirabito is interpreting that one way. We need to get clarification on that point." Mr. Mirabito said, "I spoke with on Tuesday and he also called me back late yesterday afternoon."

Mr. Limbacher said, "Section 470.6.F. says that we can issue the Special Permit in accordance with the following. There are literally three conditions that are put on that Permit. Those are the three conditions that are put on the Special Permit."
Mrs. Foley said, "But he hasn't shown us anything but the footprint." Mr. Limbacher added, "The Special Permit indicates that he has to do that." Mr. Warner said, "He has not shown us that he will not affect the drainage. Example: it could be 50% paved and he is proposing to pave all of it and that would affect the drainage as far as I am concerned." Mr. Limbacher continued, "I think you basically have what the building looks like. It is the same construction that came in when it was in front of the ZBA."

Mrs. Foley said, "It is not a matter of right. It says that the Board 'may' issue the Special Permit. It is not a matter of right."

Ms. Harbottle said she would speak with Neil Duggan and ask him to give the Board his opinion in writing.

Mrs. Foley said, "Even if he was only required to meet the National Flood Insurance provisions, how can we issue a Special Permit, with Conditions that will cover all these things, for the proposed building when all we have is the footprint?"

Mrs. Brandow said, "I still have a problem about what is the definition of water course. It needs to be clarified. How high is the building?" Atty. Santos replied, "Less than 35 feet. It complies with your zoning."

Mrs. Burbine asked, "Why don't we have those plans?" Mr. Santos replied, "This is a floor plan of the interior of the building. It is a sketch prepared by the architect."

Mrs. Brandow asked, "Why, at the beginning of this discussion did you give us the impression that you had not gotten to that point?" Atty. Santos replied, "Obviously before my client started he had a certain number of dollars that he could spend. He worked with an architect that he has worked with before and said …… 'this is what I would like to do. Don't give me working drawings, give me a sketch and a rough parameter of what it is going to cost. If it is going to be too much I am not going to go forward.' His architect gave him that and it appeared to be within his budget and so he said to go ahead. First he retained me and then Mr. Mirabito." Mrs. Brandow said, "At the beginning of this discussion I was not given that impression at all. I do think it is more than just satisfying F (1,2,3)."

Mr. Warner said, "There is a feeling that the definition needs to be resolved with respect to F3 (definition of water course). That is something that needs to be resolved with the Building Inspector. The other issue is the building design as far as the flood plain regulations."

Ms. Harbottle said, "We really need to get something in writing from Neil." The Board agreed.

Mr. Mirabito said, "I think the main reason the Applicant had some sketches done was - if you look at the areas on the chart on the plan - was to show that the square footage of the proposed work will be less than the square footage of the buildings now on the site. Also, he had to know that whatever footprint he had the interior would work for him. He had to get below the total square footage in order to go before the ZBA." Mr. Warner said, "So that explains the development of the building plans. That makes sense to me."

Mrs. Foley said, "The Zoning Board issues a different Special Permit that what he is asking from us. We are the Special Permit Granting Authority for the Town of Scituate Flood Plain & Watershed Protection District Special Permits."

Mr. Limbacher said, "We either need to vote on it or continue it." Mr. Warner said, "Yes. There is pretty much of a majority here that feels that additional information is needed so do you want to continue?" Atty. Santos replied, "Yes. I would like to have a list of what you are looking for."

There was a discussion regarding the date to continue. Ms. Harbottle explained that, given the Board's agenda schedule, the date would have to be September 26th.

Mr. Mirabito said, "I would ask that Laura, a Board member, and I meet with the ZEO/Building Commission."

Mr. Warner said, "So lets summarize what is needed. We need to get a written definition of 'watercourse' from Neil Duggan. If that definition includes the land south of EL 23 or is it north of EL 23 - if it includes that then we need to understand the existing conditions for that land and what is proposed for that area."

Mrs. Burbine said, "Again, I think you have done us a disservice. You should have given us a plan. Whatever you showed to the ZBA you should have shown to us." Mr. Mirabito said, "Ann, you have more than what we showed the ZBA." Mrs. Burbine and Mr. Mirabito continued to discuss his issue. Mrs. Burbine reminded Mr. Mirabito of prior filings he made before the Board for a Flood Plain Special Permit and the information he supplied for those applications. Mr. Mirabito again pointed out that the application before the Board was not an application for site plan approval.

Atty. Santos indicated that he agreed with the continuance to September 26th at 8:00. Mr. Warner said, "We are still talking about additional information. I want to make sure that you understand what we are looking for." Mrs. Foley said, "Minimally we want to look at some elevations."

MOTION: Mrs. Burbine Moved to continue the Flood Plain & Watershed Protection District Special Permit Public Hearing regarding property at 126 First Parish Road to September 26, 2002 at 8:00 P.M. Mrs. Brandow Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

SITE PLAN WAIVER (HANDICAP ACCESS MODIFICATION) SCITUATE HARBOR REDEVELOPMENT PROJECT

Atty. Maureen Hurley represented the Applicant, Stephen C. Warner. Atty. Hurley explained the proposal to the Board and she said, "I sent in a letter (see letter in file dated July 15, 2002) describing what this is. When Steve Cecil looked at the plan he found the handicap access was not convenient because people being brought out the back. The easiest way to see this is to look at the small plan done by the Architect." Atty. Hurley showed the Board the changes to the building noting the location of the handicap access facilities.

Mr. Warner said the change appeared to be a minor change. Ms. Hurley said it was to make more room and keep it away from the property line. Atty. Hurley said that the Commission on Disabilities agrees with the proposed change. Their Chair, Tom Snow, agrees with the it.

Atty. Hurley said she was asking for a Waiver because the proposed work was minor and insignificant in nature. The members indicated that it could be considered to be a Waiver.

MOTION: Mrs. Foley Moved to Approve the Site Plan Waiver for the Welch Company, Front Street Harbor Redevelopment Project, showing changes to the footprint of the building housing the theater in connection with minor changes regarding the handicap access. This waiver was approved in accordance with the application submitted by Ohrenberger Associates on July 15, 2002 and with a plan entitled 'First Floor Plan A1.1 (issued for permit - 5/17/2002) Scituate Harbor Development' prepared by Sheskey Architects. Mrs. Brandow Seconded the Motion and the vote on the Motion was a unanimous vote in favor of the Motion.

MOTION TO ADJOURN: Motion duly made, Seconded and voted unanimously to adjourn at 11:00 P.M.

Respectfully submitted,

Merrilyn O'Brien, Secretary

William Limbacher, Clerk

Date Approved