MINUTES

NOVEMBER 1, 2005

Members Present: Mr. Limbacher, Mr. Fenton, Mr. Fagan, Mr. Walter, Mrs. Brennan, Mrs. Chisholm (Alternate Member)

Others Present: Ms. Harbottle, Town Planner; Atty. W. Ohrenberger, Mr. S. Warner, Mr. P. Mirabito; Mr. S. Bjorklund

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

ACCEPTANCE OF AGENDA: Motion duly Moved by Mr. Fenton and Seconded by Mr. Fagan to accept the Agenda. The vote was a unanimous vote in favor of the Motion.

CONTINUATION OF SITE PLAN ADMINISTRATIVE REVIEW 21-23 MUSQUASHICUT AVENUE. APPLICANT: STEPHEN C. WARNER

Mr. S. Warner, the applicant, was present along with his attorney, William Ohrenberger, and his engineer, Paul Mirabito of Ross Engineering Co. See sign-in list for names of others present at this meeting.

Atty. Ohrenberger said, “Since the last meeting Paul Mirabito has some details about the rain garden which he will go over.”

Mr. Mirabito said, “Since the last meeting the Conservation Commission recommended that we put in a rain garden and they gave us design criteria for that. It is state of the art. On the site plan, which I submitted to you this afternoon, we show a rain garden in the same area that we showed at our last meeting. There is also a treatment structure known as a stormceptor at the entrance to it. Although the Commission recommended that we not put it in there we feel there should be some sort of treatment of the water before it goes to rain garden. The purpose of the rain garden is two-fold. One is to hold water back in a large stormwater rainfall event. Also to treat the water before it exits here and goes into the Pond. Some of the water will be infiltrated into the ground as the rain garden is designed to take some infiltration of the rain water. In larger storms such as the 100-year storm, the water leaving the garden would go through a drain pipe to a stone riprap area, out into the street and out to the Pond. The other thing we added to the plan -- behind the proposed three-unit building (which is the purpose of this hearing before the Planning Board) - this shaded area represents paving blocks. They are manufactured stones or bricks which have spaces between them with stone dust and sand below that. The details are on the plans. We are proposing to put them here and we are doing this at the request of the Conservation Commission. That will allow some of the rain water to infiltrate into the ground and infiltrate into the sand fill. We are still proposing a small retaining wall here to hold the sand fill in and also hold bricks in place. The rest of the area here will be paved with asphalt. The runoff from the asphalt will go into the swale and into treatment system, into the rain garden and eventually into the Pond. We have not changed any of the grading or the runoff areas. Roughly about one third of the site floods toward the back here. We will be picking this end of the site up and channeling it back in here. There is very high groundwater in this area of town. The wetlands are not supported by rain water they are supported by ground water. The area to the rear of this wall will be lawn area. It is shown on the Landscape Plan. The purpose of plan is to have a landscape buffer to the rear of the property between the site and the abutters. The rest of the site (this area here) will be heavily planted with shrubs. There is a planting schedule on the Landscape Plan. Those are the two changes we made in accordance with CEI report and as part of the Conservation Commission review.”

Mr. Fenton said, “Tell me about the Landscape Plan. We have that. Has it been modified?” Mr. Limbacher said, “The latest plan that I have is dated 10/27.”

Mr. Fenton asked, “Will headlights be shinning on abutting property?” Mr. Mirabito said, “This is the rear property line. We are proposing to put some trees here for screening purposes. There are trees here and here. Here there will is grass. These trees will be about 8’ tall. Because of the elevation of the driveway they will serve as a buffer. We don’t want to wait five years for the trees to grow. They should block the headlights. Sally Coyle, Landscape Architect and member of the Conservation Commission, is involved with the landscaping. There are also plantings here and here.”

Mr. Walter asked if all the plants were specified by Sally Coyle. Mr. Mirabito said they were and he showed Mr. Walter where additional plantings would be placed at the request of the Conservation Commission. Mr. Mirabito said, “Right along the edge of the wetland line is a line of vertical granite curbing. We will install plantings there. Phragmities are here and will be removed because they are very invasive.”

Mr. Fenton said, “You talked about the possibility of reducing the asphalt. There will be some disturbance during construction anyway.” Mr. Mirabito replied, “This area here is a mishmash of paving that has been broken up. We have to repave this circle. The Fire Chief has no problems. We will pave it in the same location. Here is the edge of pavement. As far as pavement on site the there is about a 35-40 percent reduction in impervious on this site. That takes into account that this area was hard packed gravel. There was a paved driveway in here as well. Here is the pervious paving. So when this is done the only asphalt on the site will be the driveway.”

Mr. Limbacher said, “You are right – there is a core here and here. The contractor’s yard is impervious surface. I think it is soft here. I don’t know what the number is but I don’t think it is 40%. Take me back – this proposal here is in response to CEI’s August letter.” Mr. Mirabito responded, “We received some comments from them and we had a meeting with them in September and we went over their review comments. Half the comments from CEI were based on the fact that they did not understand what we were are doing. They asked us to put a note on the plan as to whether or not there were endangered species on the site. There are no endangered species in the area. They asked for hay bales up which we did in the areas they requested.. They asked us to look for an alternative to drainage and they suggested the rain garden. After that we had a meeting with Conservation and they wanted a rain garden and they asked us to reduce the impervious surface, to use pavers, and to get rid of the phragmities. CEI received these latest plans yesterday. Here is the cross section of the rain garden. CEI has not reviewed the latest plans. It is straight forward and very easy to follow. We designed for the 100-year storm event.”

Mr. Limbacher said, “They wanted low impact development. I am little concerned (and I talked to Matt Lundstead of CEI this afternoon) that CEI has not had a chance to review this. So what I have here is a proposal that was not reviewed by CEI.”

Mr. Mirabito replied, “They are not concerned about mitigating the peak flow from the 100-year storm because the Pond is considered to be tidal. They wanted a rain garden instead of a stormwater basin. We said that we had to deal with the rates of runoff. His concern and the Conservation’s concern was not with the rates of runoff. We don’t have to do that.” Mr. Limbacher said, “No one is arguing that it is not a pre/post situation. I want to make sure that your design mitigates the surface water.” Mr. Mirabito replied, “It does do that even if we do not have to do that. The purpose of this basin is for treatment. We think we need the stormceptor even if Conservation Commission says that we don’t need it because of the rain garden. They are not looking to have pre/post mitigated so there is not much for them to look at. They wanted asphalt reduced and we have done that. The net impact of the stormwater effect on abutting properties will be greatly reduced by this. It will be treated.”

Mr. Limbacher said, “There is still a concern with the level of runoff of the surface water going to the Pond. There is a fair amount of money being spent by a couple of other groups who want to flush that Pond. You are looking at multiple pieces that fit together. Even though I have been told that the rain garden design is the right criteria, I would be looking for CEI to confirm that.” Mr. Mirabito said, “The Pond is tidal.” Mr. Limbacher added, “It is not necessarily the quantity, it is the quality of the water.” Mr. Mirabito replied, “That is exactly what we have done. That is why we put in the stormceptor.”

Mr. Limbacher said, “I think they also talked about roof drains. Mr. Mirabito replied, “The water coming off the roof is considered to be clean water.” Mr. Limbacher said, “I don’t know what your ground water separation is.” Mr. Mirabito continued, “I spoke to Matt today about roof drains. He will not require them. He was concerned about the quality of the water and we have addressed that.”

Mr. Fenton asked, “Are you suggesting an alternative?” Mr. Limbacher replied, “I just raised the issue – was there any proposal made to handle the runoff off the roof. I was just wondering if there was some way that I could mitigate that further. Paul’s argument is that it is clean water.”

Mr. Limbacher called for questions from the Board and from the Public.

Mr. Richard Bowen, 542 Hatherly Road, said, “At the last meeting Mr. Mirabito testified that he considered the existing ground soil as paving. How he could come to this conclusion astounded us. We called the state and found out that he is a land surveyor and not an engineer. A huge problem that we have is with snow removal. Where is the snow going to go? No matter what the ground surface is that snow will be plowed back onto our land. They are doing nothing about that. As far as the rain garden – all my calculations show that it is on public land. There is no ownership there. I have a piece of paper here that I will pass onto the Board which shows the ownership line. That should be the ownership line. That garden is outside of the ownership line. [Mr. Bowen again spoke about problems he and others had when they tried to find a specific Conservation Commission meeting. He mentioned other meetings that had been postponed.] They are trying to push this thing along but we have not had enough time and we haven’t seen enough.”

Mr. Limbacher replied, “I can only take charge of Planning Board and make sure that you receive notice of our meetings. I can’t be held responsible for other groups such as the Conservation Commission. With respect to what I will call hard pan, it is a good engineering question as to how the hard pan area here – from an engineering standpoint the soil here really almost replicates what is impervious surface. The fact that it is gravel and it is ground down into the ground – it becomes, from an engineering standpoint, almost the same as asphalt. It has the same characteristics. You will not get any infiltration with the hard pan that is any different than asphalt. That was the first comment that I raised with Paul was that he maintains the 40% which is really a reduction of 40% of the impervious there now. (impervious that I now have versus what I had before). That is not an uncommon engineering assumption.[Mr. Limbacher gave an example of a front lawn and a grassy playing field to illustrate his point.] The third piece of this has to do with the ownership of this piece of property here. If I go back to the ZBA, it was decided that the land/property is as it is represented. There is some question about a missing 100 S.F. I think that at this point in time I would think that is a moot point.”

Atty. Ohrenberger said, “Mr. Bowen has raised these issues over many hearings. The point is that from an engineering, surveying, legal standpoints we have addressed all of this. I can give clarification to the Board. It has been addressed on numerous occasions at several meetings.”

Mr. Limbacher said, “I think that addresses the major issues.

Mrs. Alice McGillicuddy, 536 Hatherly Road, asked that the Board look at a map. She said that the area where she lived was really an island and she described how the area was connected to areas of Cohasset. Mrs. McGillicuddy said, “We are not connected to the main part of Scituate. We are surrounded by salt water. Musquashicut Pond is salt water. There is a sand barrier and that is a very fragile area that has a history of letting the ocean in. There is a history back to the 1800’s. If you look down below you can see cuts going all the way over to Cohasset harbor. We are on one fragile part of that. The other part of the island is down on Glades Road. He is talking about putting water in the Pond. You can put water in any pond and it is going to spread and it will spread around us. During astronomical high tides it floods the marshes along Hatherly Road. [Mrs. McGilicuddy described how the flooding occurred.] He is talking about five town houses and ten bedrooms, ten full baths, five half baths, and five full laundrys. That is the water that will go into the Pond. I think Board’s job is to decide if this will do substantial damage to the neighborhood and the island which is surrounded by salt water. Then we get the northeast storms. We will always have these storms. This is a very fragile area.”

Mr. Mirabito said, “When we do stormwater drainage calculations we do not do calculations based upon ocean storms. Our calculations are based on rain falls – rain coming out of the sky. What we have to do is to make sure in the proposed condition, there is no increase in that rate of runoff. We have to make sure we mitigate any additional flows to abutters. We have done that and we have to meet very stringent regulations. She is talking about ocean storms. Any land in this part of town that is under EL 11 will get ocean storm water. We don’t design for ocean other than the foundations have to be able to withstand that pressure and they have to be built in accordance with the State Building Code. You mentioned the septic systems. These are five townhouses with a total of ten bedrooms (two bedrooms per unit). As Mr. Ohrenberger mentioned at the last meeting, the owner could build a single family dwelling on each site with more bedrooms so the amount of water going on that site could actually be higher. He could build a substantially larger single family home on these two lots. There will be 110 gallons per bedroom and the septic system is sized accordingly.”

Ms. Harbottle said, “I agree there were environmental problems now with Musquashicut Pond I think the storm water treatment is going in the right direction.”

Mr. Mirabito explained the septic system proposal and Title 5 criteria that must be met e.g. groundwater separation. He said, “We had a Board of Health Public Hearing and there were no variances needed. If you were to look at the single family homes in the area not one of them would have a stormceptor, a rain garden, or a stormwater basin to collect the runoff from their individual lots and that is the kind of extra protection that we have. We are making a very small contribution to help the problems in the area, but at least it is a start. We have no negative impact from the water coming off the site. One of the concerns of CEI and the Commission was with the peak rates of runoff. In this design we have added that stormceptor and added a recharge component to the storm drainage system We meet the peak rates of runoff which we did not have to do. Having said that, this is a very good environmentally designed site. We have spent a lot of time on it and it is a well thought out project.”

Atty. Ohrenberger said, “This is not a pristine site – it is a contractor’s yard. Currently there are enforcement orders from the Conservation Committee. There was a lot of thought that went into this project to come up with something that is appropriate and tasteful. There were four units as of right that we could build without coming before the Planning Board. The ZBA allowed the five units. The exact footprint could be built without coming to the Planning Board and doing drainage. I realize people have concerns. We have looked at it hard and we think we have come up with something that is a significant improvement. That is our position. We will do the treatment of the water to insure that there is less run off than there is now. We are doing a rain garden. I understand that many of you have heard this before. I just wanted to put it into perspective for those who have not.”

Mr. William Flaherty, 5 Pond View Avenue, said, “ My concern is not so much about the water runoff as it is with the state of Musquashicut Pond now. The Pond is polluted. If you take a look at it when they open the gates there are tires and trash in it. The Pond’s current level will not support marine life hence the midge problem. Since last meeting you did some 21 E work and you did remove some barrels from the site. I understood that you did soil tests but I don’t know how that went. I understood that they came back negative. So we have property here that was not leaching into the Pond. I find it hard to believe that with your single family project on two lots with ten bedrooms that it will not contribute to the already stressed environment of the Pond. There are a lot of things that need to be done to the Pond. It needs to be dredged. It should be cleaned up. People are waiting for sewer so that we can get sewer tie-ups. Once we got the sewer tie-ups then we could clean it up, do dredging and that clean up would last. It could support marine life and it could then be a more recreational pond. My concern is that I don’t see how putting in ten bedrooms and the appropriate septic system (which previously has not been there) – would not contribute to the Pond. Might I add, it appears that the land has been built up from its previous state so that the existing site has been altered. It looks like it is on a higher grade.”

Mr. Mirabito described the existing and proposed leaching areas and he noted that today’s environmental laws that will be used with the proposal are much better than they were. Most of homes in the area were built a long time ago back in the 20’s or 30’s. Mr. Mirabito pointed out that the proposed site is the only one in the neighborhood that will have state of the art environmental protection for the Pond and the groundwater. Mr. Mirabito again described the treatment of the stormwater e.g. grass swale, rain garden, stormceptor. Mr. Mirabito said that the net impact of this site is far superior of what is out there now and far superior to the existing homes. The septic system will be designed under the new Title 5 regulations.

Mr. Flaherty said, “I take issue with some of Mr. Mirabito’s points. I bought my house in 2003 and had to put in a brand new septic system. There are a number of homes in the area that do have mitigation measures for stormwater. What I am not hearing is that this will not 1) make the Pond more environmentally stressed; 2) I am concerned that there may be standing water here with heavy rains (Fall, Spring) which may add to the mosquito problem. Mr. Mirabito replied, “That is why they went to the rain garden. This site, the way it is designed, is more environmentally sensitive than the current situation that is there.”

Mr. Flaherty said, “What I understood from what you said at the last meeting, that this area even though it was not clean and had barrels on it, there was no environmental problems on the site because the tests came back clean. So if the tests came back negative and even if was ugly it was not discharging of the site. If it was discharging to the Pond it is hard to believe that the tests came back negative.”

Atty. Ohrenberger said, “He is talking about toxic waste versus ground water. There is a difference between 21E and toxic waste and water testing.” Mr. Flaherty added, “So the toxic pollutants did not get into the Pond. Mr. Mirabito replied, “According to our tests.”

Mr. Flaherty continued, “So if there weren’t concerns about the toxics I can’t believe that there wasn’t an issue of untreated water going into the Pond. My point is that I believe that this will put the Pond under more stress than it already is.”

Mr. Mirabito again explained the protections under Title 5 and how the proposal was designed to meet those Regulations. He said that the proposal meets all the current Title 5 Regulations, Board of Health Regulations and the requirements of the Wetlands Protection Act. He emphasized the fact that the proposal exceeds what is necessary to do for Conservation.

Mr. Flaherty asked, “How deep were the tests done on property? The grade has been built up.” Atty. Ohrenberger said, “I don’t know what this 21E have to do with our project.” Mr. Flaherty replied, “My concern is with additional environmental stress on the Pond.” Mr. Limbacher said, “I think your point has been made.”

Mr. David Kline, 9 Pond View Avenue, referred to the CEI report #7 and he read sections of it aloud. He said, “They noted that no portion lies within a habitat or area of critical environmental concern. I am curious as to what that is based on. When I did my project in 2002 I had to hire two botanists to prove that I did not have any endangered species on my property. Is 21 E report available for public review? I think some of the neighbors are concerned about that.” Atty. Ohrenberger replied, “It is filed with DEP.”.

Mr. Kline asked, “Was that just done on Lot 23 or on both?” Mr. Warner replied, “I think it was just on Lot 23 but I am not 100% sure. I will drop you a copy.”

Mr. Kline said, “When we did our property we had to do a flood elevation of 13’9”. I think your plans are 11’ EL. I am curious as to how it could have gone down since 2002.” Mr. Mirabito explained the flood elevations under the Oct. 1994 revised FEMA maps. He said that the local Conservation Commission adds one foot to the measurement e.g. the first floor would have to be to EL 12.” Mr. Kline replied, “I beg to differ. Mine is at 13’9”.” Mr. Mirabito said, “The first floor elevations are around 13’ or 14’. Most houses are build higher because you want a crawl space.” Mr. Kline continued to discuss what he had to do on his property in order to meet Conservation requirements. Mr. Limbacher said, “These are actually at EL 14+. They are higher than what you are currently.” Mr. Kline said, “On the plans that I saw the basement of the garage is going to be as high as the first floor of my house. The other thing is that I don’t know how those plantings will stop lights from coming in my windows.”

Mr. Mirabito said, “When they say an area is of ‘critically environmentally concern’ – that is a very loosely and common term used by the Conservation Commission. [Mr. Mirabito offered some examples of terms used by the Commission regarding environmentally sensitive areas.] The other issue is rare and endangered species and wildlife habitat. There is a map put out by the State and it shows this area so there can be a determination made as to whether there are any rare and endangered species.”

Mrs. Brennan asked about the proposed plantings (location and height). Mr. Mirabito showed her the location of the plantings and said that they will be tall enough to block lights onto abutting property because Mr. Warner has agreed to put in tall trees to start with.

Mrs. Brennan asked about the ground elevation. Mr. Mirabito said, “The elevation of the driveway in back is EL 13; the ground down here it is 9’ or 10’. If we put in 8’ tree on elevation 9’ we will have 17’. It will block the lights. You will not have to wait for it to grow.”

Mrs. Brennan asked Mr. Kline about the height of his first floor. Mr. Kline told her it was at EL 13’9”. Mr. Mirabito added, “Our garage floor is at 13’ and our first floor is 13’ too.

Mr. Limbacher asked if there was any more public comment. There was none.

Atty. Ohrenberger said, “We are waiting for the Conservation Commission and we hope they will close on Nov. 16th. They want that to be the last meeting. At some point, we feel strongly about this project, we would like to have hearing closed.”

Mr. Limbacher responded, “Let me tell you what I think. In effect what you are asking us to do is to say that we have looked at stormwater management. I did have a discussion with Matt Lundsted, CEI, this afternoon. But without his review you are asking this Board to make a conclusion without having the information. To the extent that you clear through ConCom on the 16th, then we could schedule this at our next meeting thereafter and close it then.” Atty. Ohrenberger replied, “I am not suggesting that you do anything that is not proper. If that is how the Board feels then that is okay.”

Mr. Limbacher replied, “I can only speak for one member of the Board.”

Mr. Fagan asked Mr. Limbacher, “You are concerned about the drainage?”

Mr. Limbacher replied, “What I am looking for is to have CEI say that this rain garden, from an engineering standpoint, does everything that was discussed and agreed upon in the conversation they had in September with ConCom. What this does is that it takes the conceptual idea that was discussed in September and gives an evaluation of it.”

Atty. Ohrenberger said, “You could condition it.” Mr. Limbacher replied, “I would rather see the CEI report. The more that you can infiltrate the better off you are.” Atty. Ohrenberger asked, “So what happens if ConCom won’t close on the 16th because you haven’t closed. What I would like to know from the Board -- if CEI has the report and it is what you are expecting – will that put you in a position where you can vote it?” Mr. Limbacher said, “I think the answer is yes. I understand the Catch 22 with ConCom.”

Mr. Fenton said, ‘Snow removal is something I have not heard about. Having piles of melting snow at that back edge would not be a good thing. Could you clarify that/” Mr. Mirabito replied, “The snow would be removed by a private contractor. [Using the plan, Mr. Mirabito showed the Board the area where snow could be stored and how the snow would be removed.] There will be a Homeowner’s Association. Typically along the ocean you don’t get the large amount of snow fall.” The audience disagreed with Mr. Mirabito’s last statement.

Mr. Jon Blondell, 550 Hatherly Road, “We got inundated with snow last year. There were piles and piles of snow so if you think that those snow plows won’t dump that snow over that wall, you are mistaken. There will be piles of snow all along that wall and over the wall and it will drain into our yards. That is where it is going to drain.”

Mr. Limbacher said, “Clearly if it gets dumped over this side of this wall, what you have done is to force the drainage off site.” Mr. Mirabito explained how the water flows on the site noting the part flowing towards the back. He showed the areas where a snow plow would handle the snow and the areas where it would have to be removed using a snow blower. The Homeowners will hire a private contractor to remove snow.

Mrs. McGillicuddy said, “They will have no control over how the snow will be plowed unless it is written in as a Condition. It should be put in writing.”

Atty. Ohrenberger said, “What I am hearing here and we respect the opinions from the public, but don’t you think that this is a better situation. Is there anyone here who does not think this is a better situation? Would it be better to build the four units we can build by right but without all the drainage etc. We can withdraw the application and build four large two-family units here and there would be no drainage. That can be done. We have gone through exhaustive engineer to try to get something positive here. We have been through Conservation, Board of Health, - everyone has looked at this in great detail. Now it is a snow issue. If you have two feet of snow it is not two feet of water. It is two inches of water. We have done the hydrology. If we have three 100-year storms three days in a row will the water get to the Pond? Probably. We don’t think building four large two-family units is the best plan. We have tried to accomplish in good faith and we will continue to do that. Obviously we think we are doing something here that is an attribute here. That is not what I am hearing. If not, then give us some clear direction. Perhaps we should be going in a different direction.” Mr. Limbacher replied, “I don’t think you are hearing that from this Board.”

Mr. Fenton - I am trying to provide a process here so we can get to closure. It comes down to CEI’s final review for treatment and water quality. Also, I had asked about snow removal and possible ways to mitigate it. I would like to hear it. I had asked about the possibility of reducing the paved surface e.g. at the circle. It could be a normal paved driveway with paver stone pullout – a hammerhead down at the bottom of the circle.” Mr. Mirabito replied, “We can’t do that because it is an existing public way.”

Ms. Harbottle said, “The Planning Board could request it.”

Atty Ohrenberger said, “What I am saying is that you can’t condition something we can’t do. If you can get DPW to approve it then we will do it.”

Mr. Fenton said, “I am trying to come up with specifics to get me to a point of comfort. My list is down to that. I am with Bill on this. We do see an opportunity for closure.”

Ms. Carol Burns, 18 Musquashicut Avenue, said, “You could take a poll of the people here. There are members of every single house on Musquashicut Avenue here.” Mr. Limbacher said, “That is not necessary but we do appreciate your attendance and your comments. Lets rap it up. The sense of the Board is, as I understand it is, that we are looking for a continuance on it. I will suggest a couple of things. One is to have CEI send their report to us as well as to Conservation. Second, it may be advantageous between now and your meeting with Conservation on the 16th if you could have a meeting with the same group that met in September. I would ask that you check with Laura, Mark and I about our availability to attend a meeting so that you could have a Planning Board member or Ms. Harbottle at that meeting. Having said all that I would look to the applicant for a request to continue.”

Mrs. Brennan asked, “Could we get some Conditions from the abutters?” Mr. Limbacher replied, “We could do that and discuss them.”

There was a discussion regarding the date for the continuance. Atty. Ohrenberger requested that the Hearing be continued to November 22nd. See Motion below.

MOTION: Mr. Fenton Moved to continue the Site Plan Administrative Review Public Hearing regarding property at 21-23 Musquashicut Avenue to November 22, 2005 at 7:00 P.M. and to extend the time to file the Decision with the Town Clerk to December 10, 2005. [This action was taken in accordance with the discussion at the November 1st meeting and in accordance with the letter signed by Atty. W. Ohrenberger, the Applicant’s attorney, at the November 1st meeting. Motion Seconded by Mr. Fenton and the vote was a unanimous vote in favor of the Motion.

Mr. Fenton thanked the public for their participation and attendance at the Planning Board meetings regarding the 21-23 Mushquashicut Avenue proposal.

1. Planned Development District Special Permit Decision
2. Flood Plain & Watershed Protection District Special Permit Decision

Atty. F. Colpoys and Mr. W. Adams were present. Ms. Harbottle gave out copies of the 3rd final draft approval documents (dated November 1, 2005). See file for details.

Ms. Harbottle referred to notes and the Minutes of the last meeting regarding the two Special Permits (Oct. 13th). Portions of the Findings of Fact and the Conditions of Approval had been reviewed at that time. See Minutes of October 13th. Ms. Harbottle explained the changes made to the documents. The changes are highlighted and/or crossed out.

CONDITIONS OF APPROVAL PDD:

1. Condition #5: Mr. Limbacher read the proposed language aloud. Atty. Colpoys said, “I don’t think that the location will be on the site plan. The Master Deed will have the breakdown of the bedrooms. So I think we are okay there.

2. Condition #8: Ms. Harbottle read the proposed language aloud. She said this Condition had to do with off-site parking. Mr. Limbacher said, “The argument the last time was that if I can’t park my car conveniently I won’t keep my boat there. This is language that I can live with.” Mr. Fenton said, “I know that you can’t foresee what will happen in the future.” Atty. Colpoys said, “The bottom line is that we still do comply. You are right that it comes down to a marketability situation. We do have a signed agreement with next door.”

3. Condition #18 (Marina O & M Plan): Ms. Harbottle said, “When I looked more closely I found that it is actually called the Marina Environmental Management Plan so I changed the language. CZM sets up what the parameters are in the Massachusetts Clean Marina Guide. They are experts in overseeing marinas. It made sense to me to have DEM review the marina plan. Their southeast office is in the old coastguard building in Scituate on Edward Foster Road.” Atty. Colpoys said, “We have no problem doing a marina environmental plan. Your consultant said that it has nothing to do with what you are approving here because we are doing anything with the marina. This is your chance to tack on Conditions and get something done even though it has nothing to do with the Special Permit. The Board is kind of going outside, but we don’t have a problem doing it because we want to run that kind of marina. The only problem is that extra layer in that second paragraph about going to CZM. It is just another layer of bureaucracy that we have to go through. It is not related to the Special Permit. The marina is staying exactly the same. CZM – it is not that easy to go through. We have no problem having town counsel look at it or the Planning Board having a look at it, but to set up another area where we have to go for approval when we are not going to do anything down at the marina is going a step too far. Again, we have no problem putting the plan in place. We will take that extra step, but we are asking that you not make us go through another regulatory authority.”

Ms. Harbottle said, “I think what would happen is if you gave it to us for approval I would run it by CZM just to get their comments.” Mr. Limbacher asked, “What happens if it is just reviewed by Town Counsel?” Ms. Harbottle replied, “She would not know much about it.”

Mr. Fenton said, “Let me suggest this -- remove the first sentence and leave it up to us as to what we want to do with it. That would get rid of the formal regulatory review by CZM.” Atty. Colpoys replied, “That is fine. We can give you whatever information you need and you have every right to do that. We just don’t want to make it a requirement that we have to go to CZM because it has nothing to do with the condo development that we are here in front of you for. We are not changing the marina that is there.”

Mr. Walter said, “I am not quite sure why are we doing that.” Ms. Harbottle replied, “This is something that the consultant suggested.”

Mr. Will Adams said, “We want to use BMP’s. We will do the plan but we don’t want to have to get into this whole regulatory process. We will follow the Clean Marina Guide. The marina we have is clean.”

Mr. Limbacher and Mr. Walter both indicated that they agreed with Mr. Fenton’s suggestion about removing the wording regarding the applicant needing a review by CZM. The final wording of the paragraph will be as follows: After Planning Board approval, the Marina Environmental Management Plan shall be recorded at the Registry of Deeds and this recording shall take place within one hundred and twenty days of the filing of this approval with the Town Clerk.

The members agreed that they had worked through all of the Findings and Conditions. The Chair called for a Motion.

MOTION: Mr. Fenton Moved to accept the Findings of Fact and the Conditions of Approval as discussed at the previous meeting and this meeting and as finalized at this meeting. Mr. Walter Seconded the Motion and the vote on the Motion was a unanimous vote in favor of the Motion.

FLOOD PLAIN & WATERSHED PROTECTION DISTRICT SPECIAL PERMIT:

FINDINGS OF FACT: Mr. Limbacher read the Findings aloud. There were no questions or comments.

MOTION: Mr. Fenton Moved to accept the Findings of Fact as read. Mr. Walter Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

CONDITIONS OF APPROVAL: Mr. Fenton read the Conditions of Approval aloud. There were no questions or comments.

MOTION: Mr. Fenton Moved to approve both Special Permits with the Conditions of Approval as read. Mr. Walter Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

FORM A PLAN 770 FIRST PARISH ROAD. OWNER/APPLICANT: GERALD E. DWIGHT

Mr. Ralph Cole represented the applicant. Mr. Cole said, “We have a common driveway for three lots here done for Gerald Dwight. We are cutting off a piece here and selling it to the abutter. It is not a buildable lot by itself. The house doesn’t change; the septic system doesn’t change. We conform to frontage and lot area.”

There were no questions from the Board.

MOTION: Mr. Fenton Moved to endorse as Approval Under the Subdivision Control Law Not Required a plan of land in the Town of Scituate located at 770 First Parish Road. Plan prepared by mr Surveying for Owner/Applicant, Gerald E. Dwight. Plan dated October 17, 2005.

FORM A PLAN 27 LAWSON ROAD. APPLICANT: MICHAEL AHERN. OWNER: JANE K. BLOUNT

The applicant, Michael Ahern was present. His engineer, Ralph Cole, explained the plan to the Board. He said, “We are subdividing this land. We will be knocking down the existing house. Lot A conforms to zoning. Yes, it is the brick house. It is in tough shape. Lot B - we have adequate frontage and lot area to do a duplex. We conform to all zoning. There are no wetlands on either lot and both have been perked. Lot A has an existing system for a five bedroom house. Lot B has been perked and it satisfies Title 5.”

Mr. Limbacher asked, “If I Form A this before the house comes down is it creating a nonconforming lot?” Ms. Harbottle said, “Yes, but you have that stamp that says that if the plan is endorsed it does not mean that it conforms to zoning.”

Mr. Fenton asked, “Why would we not wait until it is razed to endorse this?” Ms. Harbottle replied, “First of all he may want to start marketing it. The technical thing is – the lots do not have to conform to zoning. We could send a note to Neil Duggan if you want to. It has the frontage on a public way, so we have to do it.”

Mr. Limbacher asked, “What about putting a note on the plan?” Ms. Harbottle replied, “Notes on Form A Plans don’t really mean too much.”

Mr. Fenton had questions about the Form A process in general. Ms. Harbottle replied, “That is why there is a movement to change the ANR laws.”

Mr. Limbacher said, “I can live with it as it is without a note on the plan.”

Mr. Fenton said, “We have to abide by state law.”

Mr. Walter asked, “I was just wondering – is this the same person developing this that did the Robinson house?” Mr. Cole replied, “No. The developer of this property, Mike Ahern, is present. He did not do the other one.”

MOTION: Mr. Fenton Moved to Endorse as Approval Under the Subdivision Control Law Not Required a plan of land in the Town of Scituate located at 27 Lawson Road. Plan prepared by mr Surveying, Inc. for Applicant, Michael Ahern. Plan dated October 18, 2005. Mr. Walter Seconded the Motion and the vote on the Motion was a unanimous vote in favor of the Motion.

INFORMAL DISCUSSION BATES LANE WITH STEVE BJORKLUND

Mr. Bjorklund said, “I am here to listen to what has gone on since the last meeting. I am not pushing really hard but I would like to proceed forward if I can. Rick Agnew has set up a meeting. Hopefully Laura did some kind of a report on it. I haven’t seen it yet. From what I understand, Town Counsel agrees that I have the right to go in and construct Bates Lane as long as I don’t interfere with other individuals’ rights to use it. Mr. Jeannero was here at the last meeting. He wants me to do the least amount of destruction on the land. He does not want me to go in and cut down all the trees. He would like me to gravel it from stone wall to stone wall to keep it looking like a country lane, if I can. The problem is that I have to do enough of an upgrade in order for the Planning Board to be satisfied that I have adequate access to get up to the site. The Fire Chief has been up there and he has no problems getting a truck in as long as I provide him with a turn-around. There is one low area that puddles a little bit after a rain storm. I would like to file with the Conservation Commission to fill in that puddle. It may be just an RDA to fill in that one small low area. Other than that I don’t want to do too much.”

Mr. Bjorklund showed some pictures of what the land looks like today and he said he was looking for guidance from the Board and that he wanted to work with the Board.

Ms. Harbottle said, “We had a meeting with Judith Cutler, Town Counsel. She worked several years ago on the Charles Moncy ANR case. The Planning Board turned it down and it went to court. There was a big, long, tug-of-war in the Land Court about it. The issue was – what kind of way is Bates Lane. Is it an ancient way? Was it a public way? What was it? They came up with the term ‘statutory private way’. It sounds like something they made up but when you really look into it - it is almost like a public way but instead of being laid out for the public it was laid out for one or two owners. It is not a public way. It is a private way. They don’t really know who owns it because it is so old. It would be very complicated to find that out. It is also kind of a whole West End neighborhood concern. It is a beautiful pristine area. That was part of the reason that the town got involved in the court case. So Judith Cutler came down and talked to Rick Agnew, Neil Duggan, Vinnie Kalishes and myself about the issues there and what are some of the options for the town. One of the things that she said was because there is uncertainty of the ownership and whether or not anyone has the rights to improve it, she strongly suggested that any town board get something that she called a certification from an attorney showing that whoever wants to improve it has the right to do that – whether they own it or they are an abutter. That is a way of protecting the town against some abutter or whoever tries to sue. The second thing was (there were some other little trails that we got off to that did not have much to do with this) - if Steve has right to improve it then what type of improvements does he have to make. When you look at the definition of frontage – that is what triggered this whole thing coming to the Planning Board. The Zoning Bylaw says what frontage is and it ties into the state law Ch. 41. There are three different possibilities. [ Ms. Harbottle explained the three criteria in detail.] Now this is just one lot and maybe for something like this just some minor improvements would be nice, but this would be the first lot. You need to think about the ultimate developability out there. Given that, what are the improvements that you would want to see. Unless there is some way that Steve can show that the development on his lot will be restricted and that it will be the only one developed.. Some of that land is Conservation land and you can count on that not being developed, but there are lots of other land out there. There are lots of privately owned land out there. I think there is a lot of information that has been made public.”

Mr. Fagan said, “The Maxwell Trust has land out there. I drove out there. It is a nice area. Didn’t the court say that it was okay?”

Ms. Harbottle said, “They just defined what type of way it was. They defined it as a statutory private way. For the lot to have frontage on a private way, you as a board, have to agree that the grade, the construction, are okay for the development that might be there.”

Mr. Limbacher said, “What is implied here is that it is either A, B, or C. The question is – does the lot have frontage? Maybe the lot doesn’t have frontage.” Mr. Fenton said, “You could argue that it doesn’t meet any of the three criteria, right?”

Mr. Bjorklund described the three types of ways listed under the Subdivision Control Law and he gave examples of each.

Mr. Bjorklund said, “I am not here looking for the ‘division’ of a piece of property. I am looking for this Board to determine that I have adequate access. Under Ch. 40A S6 -- if I have a lot that has 5000 S.F. of land area and 50’ of frontage on a street or a way (and the Court has determined that Bates Lane is a way) -- so I am not here to determine whether I can make frontage or not make frontage. I just want to know if I can get emergency vehicles up there to service it. It is a pre-existing nonconforming lot because it was here before the definition of frontage (frontage on one of three types of ways). So if someone is concerned that because I have a five acre piece at the top of Bates Lane - I say that I got my one lot and my building permit so now I am going to take the five acres and divide it into five lots – I can’t do that. That is not the decision that I am looking for this Board to make.”

Mr. Bjorklund explained the property ownership in the Bates Lane area. He said, “As far as the property along Bates Lane itself, there is M. Jeannero’s property that has a house on it (right hand side) and he is in tune with what I am trying to do. The next parcel up is the Conservation Commission. They own 50% of the interest in the next piece. I own 23% of the interest of that piece and there is an outlying 27% interest that is all over the country. The next parcel up was the Moncy parcel which is now owned by the Town of Scituate. The next parcel up on that side was the Davis property which is now owned by the Maxwell Conservation Trust. If any of you have looked at the plans – when you go up Bates Lane, Bates Lane turns to the west and meshes in with Indian Winds. There is a small spur that looks like a roadway that goes off to the right hand side (which is actually not part of the Bates Lane layout) and, in fact, I have a deed which says that I own that portion of the road. When I bought the five acres at the top I also got the lane leading to the pasture as long as the pasture is there. So the part that goes to the right down to where they used to water the cows is actually my property. That is not included in any of the layout of Bates Lane. As you go across the top of Bates Lane I have a five acre piece which has all the septic systems for the last portion of the Indian Winds Subdivision so there is a big huge septic system out there. That is not a developable piece of property. I have already sold off a lot of the rights in that. The next parcel that abuts up against the back of Indian Winds is a 1 acre parcel owned by Thaddeus Litchfield which did not pass perk tests when we were in there, but technically, Thaddeus’ one acre piece – if Thaddeus came in under the same ruling that I am looking for and wanted to go in and improve 2500 feet of roadway to get all the way up to the other end of Bates Lane – he could potentially have one buildable parcel of land right there. The next parcel curls around and becomes the Hennessey which is about 40 acres of land on the west side of Bates Lane. Hennessey divided some of his property and created a lot next to his home on Clapp Road that came out of that parcel. He no longer has a pre-existing nonconforming lot for the part on Bates Lane because it is all connected to what is on Clapp Road. So he does not have the same protection to use Bates Lane as frontage because he has divided that land. The Litchfield parcel was sold last December to the Maxwell Trust. Then you have the piece that I am trying to develop right now which is 1.65 acres and a parcel which this Board recently approved which is Ray Fournier’s at the bottom corner. So the potential could be: my lot, the Thaddeus Litchfield lot. Again Hennessey divided a lot right next to his house so he can’t claim the same protection that I am looking at as a nonconforming lot. His issue is not just access. He needs to have legal frontage. His legal frontage on a newly created lot would have to meet the new definition of frontage. He is not protected from that new definition of frontage that was put in three years ago, maybe. I have one lot in existence since the 1700’s.”

Ms. Harbottle said, “Litchfield may have other arguments.” Mr. Bjorklund replied, “He can use Bates Lane for access but not build on it. That is the difference. I use it every day for access. I drive up Bates Lane and go right out through Indian Winds. Marshall Jeannero uses it every day for access. The issue is – can you get from Clapp Road 900 feet up the Lane to where my property is with emergency vehicles? Is that adequate or what do I have to do to make it adequate for the Fire Chief and the Police Chief to say that they can get emergency vehicles in? The Fire Chief walked it with me and said he could get in there with no problem as long as it is 12’ wide and 12’ high so he can get the truck in there. Six months ago I cleared the Lane. He came up there while I was doing it and said that I did not even have to do that. It is pretty much about the surface. Do I have to dig it out a foot deep and run gravel all the way down? Do I have to remove the remaining trees from wall to wall which I don’t want to do. [Mr. Bjorklund spoke about the recent development of Briggs Lane off of Satuit Trail which is somewhat similar to Bates Lane.] I don’t have a problem with gravelling it or with taking the trees out of there, but it would be a shame to have to do that, especially where there is adequate access to get vehicles up there. I think the issue is just to have a good surface for the roadway so no one will get stuck.”

Mr. Limbacher asked, “How do I know where the actual layout is, assuming that Bates Lane is a statutory private way.” Mr. Bjorklund replied, “Every parcel that abuts it abuts by the way. There have been lots of surveys done for many of the lots up there e.g. Moncy lot, town lot.” Mr. Limbacher continued, “I understand that, but one of the things in the original court case and appeal is how do I know where it is? Secondly, if ownership is in doubt – how do you have fee in the road to be able to make improvements?” Mr. Bjorklund replied, “There is something that is referred to as the – derelict fee statute? It pertains to roads like this and also to a private subdivision road (that never gets accepted like Cornerstone Estates). What happens is that after the developer sells the final lot in the subdivision each of the abutting owners owns to the center of the way. That statute is not that old. It was actually put in place exactly for things like this to clarify who owns e.g. to the center of the watercourse, to the center of the river, or center of a private roadway. They did it so that people who abut on the sides of the way would have the rights to improve the way – not only for the length in front of their property, but for the entire length of that way. If someone abuts at the end of the way and it just dead-ends into their property – if they own at the end and don’t have property abutting either side of the way, they don’t have rights to upgrade the way. There are court cases on that and they were all included in the first package I gave you.”

Ms. Harbottle said, “Just to make sure that you get all of the angles, you said that there are several possibilities and that it is the derelict fee that governs who owns what. You also said that there are other possibilities e.g. the possibility that one owner may own the whole way and that ownership has never been divided up the way it would be if it was a subdivision. What Judith recommended, and she strongly recommend, was that any town board who is dealing with this type of issue gets a certificate from the attorney or the applicant saying you have sufficient rights to improve it.”

Mr. Fenton said, “Though cumbersome, it is something that could be pursued.” Ms. Harbottle replied, “If someone is really sure then just put it in writing and have an attorney certify it.” Mr. Fenton added, “Then they are on the line if somebody tests it.” Mr. Limbacher said, “Another approach is to write the letter and then let them prove you wrong.” Mr. Fenton said, “So it would not be us that would be getting sued in theory, is that correct?” Ms. Harbottle said, “Absolutely.”

Mrs. Brennan asked, ”Do I understand you that you are saying that he can have an attorney write a letter that says he has the rights to it – you are essentially saying to the abutters/neighbors don’t come to us?” Ms. Harbottle replied, “I think that is a crude way to put it.” Mrs. Brennan replied, “That is the way I heard it.” Ms. Harbottle continued, “Towns can get in the middle. There have been disputes over land like this since the beginning of time. Town often gets in the middle of things but it is not really a town issue. The Planning Board and the town can look at road construction to see if the town’s interest, in a general scale, are being taking care of, but when you get to private property disputes…” Mrs. Brennan interjected, “I don’t understand why Mr. Bjorklund asked for an informal discussion and then he began by saying that he is just hear to listen. He then proceeded to tell us all about the possible ramifications, the legal statutes etc. Why did he not just go to the lawyer?” Ms. Harbottle replied, “He had not heard Town Counsel’s point of view. He had not seen what I wrote to you and he did not know what I was going to say.”

Mr. Bjorklund said, “When we left the meeting the last time there was going to be a meeting which I was supposed to be invited to (but that never happened). That did not bother me because the outcome was the same. The outcome was exactly what we indicated it would be. When I said I came to listen I wanted to hear what happened at that meeting and to listen to concerns that this Board would have. Like Bill mentioned – what else can happen up there. I can tell you about every single parcel that is up there and why or why not that could become buildable if this Board makes a certain decision one way or the other. Again, the only one that I could find that would be able to come to the Building Inspector and ask for a building permit would be Thaddeus Litchfield because he meets the same criteria that I do if he could get a perk. Perhaps he could go back in sometime in the future and make that one lot buildable. I would not say that he couldn’t. What I am saying is that he could make the same argument that I am making that I own a piece of land that was held by my family for one hundred years and I meet the same criteria that Steve has met. He could make that argument. If Mr. Hennessey came in he can’t make that same argument. The Town owns the majority of the land up there at this point in time. If, for some strange reason, the Maxwell Trust did not buy the Litchfield property and it ended up reverting back to Mr. Litchfield then he could come in and make an argument that because he has access he should be able to get a building permit. [Mr. Bjorklund spoke about some prior development of the Litchfield property which causes frontage problems for Mr. Litchfield.] The frontage issue is a Zoning Board and Neil Duggan issue, and not really a Planning Board issue. I don’t need the ANR process because I am not looking for you to say that I have frontage on one of those three types of ways. I am really here because Neil Duggan will not make the decision.”

Mr. Fenton said, “So it is not a Form A, it is not a site plan review.” Mr. Bjorklund replied, “To determine for the Building Inspector if, in fact, emergency vehicles can get up the Lane.” Mr. Fenton continued, “So you are asking for a decision from us.”

Ms. Harbottle said, “I have to admit to being confused. When Steve wanted to come in I looked at the Zoning Bylaw and I looked at the definition of frontage and it goes to Ch. 41. I think you need to clarify it. If it is just an issue of access you can go to the Fire Chief and Police Chief and get them to write a memo. If someone wants you to come here then they should send us a memo. If Neil wants you to come here then he should write a memo.”

Mr. Limbacher said, “I am not sure that Neil needs this Board to say that it is adequate access for emergency vehicles.” Mr. Bjorklund asked, “From a legal standpoint? He is looking for support because he knows the Bates Lane issue. He does not want to just issue a building permit and ‘open Pandora’s Box’.” Mr. Limbacher continued, “In effect if this Board says that we have looked at it and we say that it is adequate for emergency vehicle access then inherent in that is that we concur that you have the right to improve that Lane. We would be acknowledging that right even though we don’t know who owns that Lane. That is where I keep coming in. What appears to be logical to me is – if you are going to get that determination you are not going to get it from me because I don’t know who owns Bates Lane. I understand the derelict fee statute. I don’t understand how I can make that leap of faith because what I am doing is really putting dominoes all together. The first one is getting emergency access so you can improve it. Then you get down to the ownership. I don’t know that you own it.”

Mr. Bjorklund replied, “I understand that. I have two issues that I have to deal with. One – if the Board doesn’t want to make a determination then I don’t have to worry about the Planning Board any more. I can just go and build the road because no one can tell me that I can’t because 1) you would have to prove that that is Bates Lane. So you are not going to spend the money to prove it – do I just go build it without trying to work with the Board? How much do you really want me to do here or do I go out and bring the bulldozers in and build the thing. I am here because I want to do the minimum that you will let me do so I don’t have to disturb it. You don’t know who owns the Lane. You don’t own it so I will just take my chances and go build it.”

Mrs. Chisholm said, “This is beyond us. Neil is putting it on us.” Mr. Fenton said, “We need to have a conversation with Neil.”

Mr. Limbacher said, “There is no beginning and no end to this thing. The bottom line is that I don’t know who owns it.” Mr. Fenton said, “An important point is that Steve can ahead and do this. It leaves it to the abutters to take legal action.”

Mr. Bjorklund said, “I don’t expect this to be resolved this evening either. I am trying to work this through. I am not asking you what I have a right to put down as a surface, but I am asking is what you think is an adequate surface for travel. Marsh just wants me to upgrade the tire tracks and maybe put some gravel in the treads. That sounds nice if the Board thought that that would be adequate for surface travel for emergency vehicle. I don’t have to prove that I can do it. I do not have to prove that to the Board. I am just looking for the Board to tell me what you think is adequate.”

Mr. Limbacher said, “To the extent that we said that you can make improvements to Bates Lane subject to the following and then you go to ConCom and they make you prove you have the rights to do it ……” Mr. Bjorklund said, “So I would have to prove that I have rights to upgrade Bates Lane. I can bring in a copy of the derelict fee statute. Town Counsel is aware of the derelict fee statute.”

Mr. Fenton said, “I think that ConCom would make you prove ownership. They will put it back on you to show that. We would take the passive line if you bring us the lawyer’s certification. We are supposing that ConCom would take the active line. They would want you to prove the actual ownership.”

Ms. Harbottle said, “The reason being is that the Orders that ConCom’s issues have to be recorded with the deed. Perhaps Neil could lay out under the Zoning Bylaw the basis for anything that is given to Steve. I was the one who brought up the definition of frontage.” Mr. Limbacher added, “There is no legal basis to give anything.”

Mr. Fenton said, “I have thoughts about the type of treatment If we got to the point where we could talk about it I would be interested in talking about it. My concern is if we go to that point without a solid basis we would have to defend how that happened.”

Mr. Bjorklund said, “Again, I am not looking for permission to do it. I just want guidance re what surface would be adequate.” Mr. Fenton replied, “I understand. I like the country lane idea but even that opens the door to our passive approval by some undefined process e.g. it is not a Form A or a site review. That is the tricky part. Even if we moved out of informal discussion what would we move to? I don’t have enough information.”

Mr. Bjorklund said, “The Catch 22 that I have is that I can’t file with ConCom if I don’t know what I will do for the road surface. Yes, I will have to prove title for Conservation. I still don’t know what to file for my road surface.”

Mr. Fenton said, “If it is simple then why don’t you go and get title for us, for Neil, and for ConCom.” Mr. Bjorklund said, “No, it is not simple. It depends on what court case I go in for.”

Mrs. Brennan said, “I am really confused why you are here. If the Fire Chief already said that he has no problem getting up there why do you need our approval?” Mr. Bjorklund responded, “If you could walk across the hall and explain that to the Building Commissioner. I have spent the last three years trying to explain it to him. He would like me to come to this Board for a Form A plan, but a Form A Plan is for the division of a piece of property. I have explained to him that I am not dividing. I have a perimeter plan. I had the property surveyed showing Bates Lane. It is on record at the Registry of Deeds. It does not require a Planning Board endorsement because it is a plan of land that exists. He says – you have to go to the Planning Board for a Form A.”

Ms. Harbottle suggested, “Perhaps you want to appeal his decision. You can do that if you don’t agree with it.” Mr. Bjorklund said, “He has not made a formal decision. I really do appreciate everyone’s time. This has been going on for decades as to who and how this is going to get done The first piece of land I ever looked at was on Bates Lane. I have learned over the 15 to 18 years that I have been doing this – exactly what Bates Lane is. I have gotten a lot more intelligent about what rights there are. I personally believe that the decision is Neil Duggans. I think he should issue a permit because the Fire Chief says that he can get his vehicles up there. Neil is saying that I must go back to the Planning Board only because this is Bates Lane. If this was any other road in town I would not be here. He does not want to make a decision to give me a permit because this road has been in front of the Planning Board for 15 years with people trying to do something.”

Mrs. Brennan asked to Mr. Bjorklund, “If the issue was about the Form A, why didn’t you just ask us to talk to Neil?” Mr. Bjorklund replied, “If you wrote a letter saying that I don’t need a Form A for it that would be great. That might be how to do it.”

Ms. Harbottle said, “It is not that simple. I don’t think that I understand it. I would like to have something from Neil or some other town official in writing.”

Mr. Limbacher said, “ I am not quite sure what I am being asked to do.” Mr. Bjorklund replied, “I can assure the Board that there is no manipulation going on. I am here because I don’t want to over build the lane or destroy the lane. I am here for some guidance from the Board.” Mr. Limbacher replied, “The problem that I have, and I suspect that the others have, is that there is really no vehicle to provide you that guidance.” Mr. Fenton added, “Certainly there is no stipulated procedural thing we can do. The technical question that you raise is an interesting one, but it is not one that procedurally that we are beholden to answer right now. I keep trying to find a path forward.” Mr. Limbacher said, “If there is a problem here we have to define it and solve it. I am not sure that that is really what I want to do.” Mr. Fenton continued, “The path forward may say that it isn’t ours to do, but I would like to find closure. You are saying that a letter from Neil would be helpful.” Ms. Harbottle replied, “Yes, that would be helpful.”

Mr. Limbacher said, “We need to find out exactly what specific information Neil wants from this Board. I would like to know what he is looking for and I would also ask, in his opinion, how do we come back up and provide that direction.”

Mr. Fenton said to Mr. Bjorklund, “I have no hesitation in urging Mr. Bjorklund to go forward and find the best possible way to determine the ownership.” Mr. Limbacher said, “The court case asked two major questions. They were: where is it located and who owns it?”

Mr. Bjorklund explained, “The biggest issue that the court had in determining that it was not a public way was that in order to have public way you had to had compensation for the owners. What happened was when they originally gave Scituate away (the Conihasset Partners) – if they gave a strip up for a roadway they were given a strip or a piece of land somewhere else in town. In other words if I gave up half an acre to put a road across my land they would give me a two acre allotment of land whether I take it now or in the future. The original proprietors could have been given two acres of a future allotment. Try to find out where that two acres of future allotment was It is real tough.

The compensation - he couldn’t prove where those allotments were through the proprietor’s records before there was a Registry of Deeds. If the town wanted it to be a public way the court would have said it was a public way. To tell you the truth, I know that Bates Lane is a public way so whatever happens at the court, personally to me, doesn’t matter. Because I know Briggs Lane and Briggs Lane is, in fact, a public way in town. The next name on the same list that made it a public way was called Brown Place. Brown Place is Bates Lane. It went from High Street which is Clapp Road to William Brown’s house in Indian Winds and the only road in existence at the time was what is now Bates Lane. It was only named about forty years ago by Mrs. Stiles. She called it Bates Lane. It was Brown Place and if you go to the Archives and look at the list of public places it will say Brown Place right on the list. So Mr. Moncy had lousy legal representation, in my mind, because it should have been determined that it was a public way at that point in time. Front Street is on the same list. Nothing else that this town did made Front Street public except to put it on that list. Common Street is on that list. By virtue of being on that list it was made public in the 1800’s. Brown Place is on the list.”

Mr. Limbacher said, “I think we have had an interesting discussion. If Neil is looking for something from us he has to be explicit as to what he is looking for and, in his mind, what authority we have to grant it.”

Mr. Fenton asked, “What is our position if Steve goes ahead and starts improving Bates Lane? Are we an involved party?” Ms. Harbottle – I am not sure you are not involved with it. I am not sure. There is town land up there and the Conservation Commission does not agree with Steve. So the town may own to the middle. There are also wetland issues. There will be filings with the Conservation Commission. The ConCom will definitely step in and get involved. We can be good neighbors and tell ConCom that they should be on the look out for any filling in the area.”

Mr. Limbacher said, “I am not sure where to go from here. Neil is looking for something and I think that it is incumbent upon Neil to say ….’here is what I am looking for, here is why I am looking for it, and this is why I am referring the matter to you’.”

Mr. Fenton asked, “Are we asking Steve to request that from Neil? So your answer is that if Steve wants something to happen then it is incumbent upon him to ask Neil. So it is incumbent upon Steve to have Neil communicate with us.”

Mr. Bjorklund said, “I will see Neil tomorrow morning, first thing. Thank you.”

PLANNING BOARD BUDGET FY’07 Ms. Harbottle explained that the budget is level funded. She asked if the Board wanted to included the money for technical services which had been removed from this year’s budget. The Board decided to include the funds ($2,000) in their budget request and fight for it during the budget process.

Mr. Fenton suggested that the Design Review Guidelines could be discussed at the next meeting with the consultant. Mrs. Brennan agreed and said it would be interesting to see how the Guidelines are perceived by the public. Some people really seem to want to have Guidelines in place, others do not.

Mr. Fenton mentioned the possibility of using the Board’s application forms to obtain information from an applicant regarding the Design Guideline criteria e.g. request color renderings, elevations, state number of copies etc. The members agreed.

Ms. Harbottle pointed out that Design Guidelines do not necessarily have to be made part of the Zoning Bylaw. Certain items could be addressed in the Bylaw along with having a formal set of Design Review Guidelines.

Respectfully submitted,

Merrilyn O’Brien, Secretary

Mary Patricia Brennan

Date Approved