MINUTES

JANUARY 5, 2006

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

Others Present: Ms. Harbottle, Town Planner; Consultants: Larry Koff & Larry Bluestone; Members of the Water Study Committee

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

*Mr. Limbacher explained to those present for the discussion regarding Doctor’s Hill that the discussion on Doctor’s Hill Surety will be rescheduled to a future date because it is anticipated that the discussion on the proposed zoning articles will be a long discussion going late into the evening and Doctor’s Hill is presently scheduled to take place after the discussion on the zoning articles.

PUBLIC HEARING: ZONING ARTICLES ON WARRANT FOR MARCH ANNUAL TOWN MEETING

See Town Meeting file for a copy of the legal advertisement containing the list of articles on the Warrant and for copies of the handouts given out at this meeting.

The Board’s consultants, Larry Koff and Larry Bluestone, were present to discuss the articles regarding the Village Business Overlay District and the Site Design Guidelines

Mr. Limbacher said, “Tonight is the initial Public Hearing on the zoning articles that will be on the Warrant for the Annual Town Meeting held in March. There are currently eight articles which we will discuss this evening. The intent is to discuss each of the articles and then this Board will take a vote on each article whether to support or not to support or recommend indefinitely postponing an article. We could also continue discussion to a subsequent meeting.”

Mr. Limbacher said, “The first two articles the Village Business Overlay District (text change) and the Village Business Overlay District (map change) – what we have done is that we have had a series of meetings and we hired consultants. When we start the discussion on these two articles I will turn it over to our consultants, Larry Koff and Larry Bluestone and let them summarize the process and the activities that have brought us to this point tonight. We will take questions from the Board and then we will open it up to public discussion. There are copies of the handouts over here on the table. The first is titled ‘Proposed Mixed Use Multifamily Zoning and the copies are dated 12/15 on the bottom.” [The Board members had a copy dated January 5.]

Mr. Larry Koff, Larry Koff & Associates, introduced himself and Mr. Larry Bluestone of Bluestone Planning Group. He said, “This project began when the town received a grant from the Dept. of Housing & Community Development. The purpose of that grant was to undertake the preparation of a mixed use multifamily zoning bylaw. We were retained in September to do that work. I am a planner; Larry Bluestone is an urban designer. The study goals were discussed at our first meeting which was Sept. 8th. Some of you have been at the past three or four public meetings. [Mr. Koff asked the audience to raise their hands to indicate how many had been at the prior meetings and how many had seen the power point presentation.] The power point presentation is on the town web site. The goals of the study were to encourage mixed use multifamily housing in the village areas (Greenbush, North Scituate, the Harbor). They are all existing business districts. They are shown here on these three maps. The second objective was to produce some affordable housing units in the village areas. The third objective was an opportunity for small scale commercial development. The fourth objective was to encourage development around transportation mode. Two of these areas, Greenbush and North Scituate, are going to have transit so things are going to change quite a bit. The town should think about adjusting zoning to reflect that there will be transit. There have been issues in the Harbor about the existing bylaw. We are trying to clarify the bylaw regarding certain issues such as density. Those are the objectives at the outset. We did a walking tour on September . 8th and there were a fair number of residents and representatives on the walking tour of the three village areas. At the time we were not certain how we would handle the rezoning of the three areas because when we went on this walking tour we recognized how different the three districts were. All three districts are quite different. Although the zoning is similar for all three the districts themselves are different.”

Mr. Koff said, “On Sept. 29th we made a presentation at a public hearing and presented our understanding of the issues and opportunities. We looked at the differences in the districts. We looked at issues of density and we discussed all those with the Planning Board and we began to think about new zoning. Some of our initial findings are that the existing zoning did not reflect the differences between the three districts. Example: when you go to Greenbush, North Scituate, and the Harbor the setbacks are different. The setbacks where the buildings line up on the street are really a bit different. There is 30’ setback in the zoning but the buildings in the Harbor and North Scituate are pretty much on the street line, but in Greenbush there are different kinds of setbacks. That is an obvious difference. The height in the districts is also different. Here you are dealing with three little village areas all zoned same but have evolved in very different ways. Secondly, we felt that the existing zoning did not provide incentive for property owners to create a mixed use village setting. In the existing zoning there was no real inducement that rewarded people to come in and do a village setting which would have shared parking, a mix of residential and commercial use, affordable housing and public infrastructure. If you are going to have a village you need a certain amount of infrastructure (streets, sidewalks, lighting, septic). All those issues need to be addressed. The process of design review was not very clear. If we are going to have change and change is obviously coming because the train is coming – we need to have a zoning framework that reflects what the members of the Planning Board and the residents want in those village areas.”

Mr. Koff continued, “On Oct. 27th we presented our draft recommendations for the mixed use zoning. Those recommendations continued to be refined, even as we talk. We continue to refine it, but for the most part we think we now we have the new zoning which reflects a new image. We are creating an overlay district for each of these three business districts which will allow for increased densities. We are talking about two levels. Right now, under current zoning, you are permitted to have 4 units/acre. We would increase this, at a base level, to up to 16 dwelling units per acre (40,000 S.F.). There would be a bonus density if the developer provided something for major public purposes with significant public benefit. That could be up to between 17 to 20 dwelling units per acre. In Scituate Harbor if the developer put the parking underground the developer could have possibly up to 36 dwelling units/acre and beyond the underground parking there are also some standards for public benefit. Mixed use buildings are encouraged on certain of the main streets. We want to add Front Street to that list of streets. Booth Hill Road, Country Way, Driftway, Gannett Road, and Stockbridge Road - those are the streets that currently have mixed use buildings. We want to see those mixed use buildings are retained if there is development. We suggest modifying the parking requirements. In a village center you are living in a denser environment, especially near transit. We encourage shared parking. Example: instead of one space per bedroom we suggest parking of 1.5 spaces for a two bedroom unit and 2 spaces for three or more bedrooms. Ws suggested modifying the dimensional standards to reflect what exists in the district. I mentioned that in the Harbor and North Scituate you don’t really have building setbacks. We suggested minimum and maximum front yard setbacks. [Mr. Koff gave some examples illustrating setbacks.] We have modified the rear yard setbacks also. Some of the details are in your zoning. We have adopted environmental and design standards especially in the Greenbush District. We want to encourage, to the maximum extent possible, the reduction of impervious surfaces especially if you are adjacent to the public water supply. There will be a special review process by the Board. We have provided some design guidelines. There is an affordable housing component. If the development has eight or more dwelling units 15% of the units must be affordable. There is a ratio of affordable to market units. There is a density for historic properties. The Planning Board will consider off-site units to substitute for on-site units. Those are the highlights. Larry and I will take questions.”

Ms. Harbottle said, “I think that everyone has done a lot of work on this, especially the Board. It will respond to some of the design issues – things that people have been bringing up fairly consistently, especially about the Harbor. We have received a lot of comments about the design whether it is a commercial building or a mixed-use buildings. Some things that have been built were not what people were expecting to see.. Some of the design criteria will encourage more pedestrian activities e.g. have buildings close to the street, more compact, easier walking distances. You will get some affordability with this. It will encourage mixed use. That is something, I think, that the Board has wanted to do. It will also maintain some protection for the Water Resource Protection District (WRPD). You have accomplished a lot with this bylaw.”

The Chair called for comments from the Board. Mr. Fenton said, “I have gotten questions from a couple of people about the affordability requirements e.g. why is it only set at 15% when other mechanisms have higher levels such as Ch. 40B which can be as high as 25%. I gave the answer but I hope to hear from the Board or from you gentlemen. To some degree we have wanted to create some incentives to have people work through the Planning Board rather than use the Ch. 40 mechanism and that 15% is one incentive. The other is - by virtue of the two levels of density - the first is 16 and the higher is 20 units/acre. One of the elements of public good that could be requested of the developer is higher affordability. The 15% is not a ceiling, it is a minimum. We could discuss with an applicant that there should be a higher level of affordability. That was my answer and I am curious to know if you agree. Do we all feel comfortable with the 15% level?” Mr. Koff and Mr. Bluestone indicated that they agreed with Mr. Fenton .

Mr. Limbacher said, “We settled on 15% in an effort to allow something that will bring something nice into these areas. Are there any questions/comments from the public?”

Mrs. Elinor Foley, Hatherly Road, (past Planning Board member), said that she was just looking at the handout for the first time. She referred to the term Best Management Practices (BMP) and questioned how the term was being used. Mrs. Foley said she was familiar with the term as far as wetlands are concerned and she questioned whether there was a zoning definition for the term. She felt that BMP should be tied to a zoning definition or a DEP definition.

Mr. Limbacher read aloud Parking and Landscaping Section F.2 (See Page 6 and 7) of the handout.

Ms. Harbottle agreed with Mrs. Foley that it should be as described by DEP. Mrs. Foley suggested that the words ‘under current standards under DEP Regulations’ should be included.

Mr. Koff said, “The town does have a consulting engineer who works on these issues all the time. We did talk to him. We could make a definition but all BMP’s are not necessarily codified.” Mrs. Foley said, “Some are – some aren’t. You need to define it. If somebody such as myself wants to look it up I need to know where I should go.” Mr. Limbacher said, “I think it is a valid point.”

Mr. Scott Greenbaum, 40 Damon Road, said, “I am concerned about the parking. We have significant problems in Harbor because of the condominiums that have been built there. They use public parking areas. If you encourage more condos there will be no parking left for the businesses. I am sure you talked about this but I am concerned because we don’t have enough parking. One bedroom unit will often comes with two cars and there is no place to park the cars. My second comment has to go with Section F. Parking and Landscaping – you define that no building shall be more than 120’ wide but there is no definition about how deep it can be. I am concerned about how large a building can be. If you codify how wide a building can be then you should also codify how deep it can be so somehow we can keep the building in character with the existing buildings. We don’t want something out of character.”

Mr. Limbacher said, “Good point. I know that you were at some of the meetings but perhaps not at all of them. Parking has been discussed at virtually every meeting. We know there is a problem. You can look at either the Welch Company or Palotta’s building, parking for the units were provided for both. It is a concern.”

Mr. Larry Bluestone said, “On the parking issue, you are absolutely right. In the Harbor we did not reduce residential parking. It was just reduced in Greenbush and North Scituate because of transit. The intent of the 120 feet was along the front. Maybe that needs to be defined.” Mrs. Brennan asked, “Would the setbacks take care of that?” Mr. Bluestone again said, “The intent of the 120 feet was along the front.”

Mr. Max Pounder, 629 Country Way, said he was a local architect and he referred to Section 560.4.C (Page 2) and he said that it seems to restrict mixed use occupancy because it limits the first floor to strictly retail use. Mr. Pounder pointed out that Country Way between Gannett Road and the Cohasset line is a good place for professional offices and a service facility on the first floor. He thought that if professional offices and service uses were allowed on the first floor it would facilitate the mixed use that the Board wants to see.

Mr. Pounder then referred to Design Standards Section 560.8.A.2 and 3. (roofs) and read that section aloud. He gave examples of sloped or pitched roofs and dormers. He asked, “Is there flexibility to have a dormer with less than an 8:12 pitch? I don’t have the a proposed solution. It could be part of the design review.”

Mr. Pounder referred to Façade Treatment 560.8.B 2 and he read it aloud (Page 6) and he noted that it was an absolute requirement that 50% of ground floor building facades and 30% of second floor building facades facing public ways shall be glazed. You are telling a designer that he has to have 50%.” Mr. Fenton said, “Perhaps the language should say that it should be a minimum of. Ms. Harbottle explained that the words ‘a minimum of’ had already been changed to this section and she said that in the section on roofs (560.8.A.2) the words ‘dormers shall be exempt from roof pitch requirements’ had been added. See version dated 1/5/06 for these changes.

Mr. Pounder asked about the front yard setbacks (560.8.C.2.) and the requirement that any building on Front St. containing more than 2 stories, the third story and above shall be set back a minimum of 7ft. behind the first floor, and about Section E. regarding building height setback of 2 ½ stories. See Page 6. Mr. Pounder discussed the definition of habitable space, the definition of stories, and whether an attic that has habitable space becomes a story. Mr. Pounder said he did not understand what 2 ½ stories meant. Mr. Fenton replied, “On both of these language has been added. A sentence has been added in C.2 that says ‘The roof over the front two stories shall be exempt from Section 560.8.A above. That is in regard to your first concern. The second one - we turned 2 ½ into 3 stories. Those two have been addressed through language changes. These are all post-dated the version you have.”

Mr. Pounder referred to Page 7 paragraph G.1 regarding that no building structure shall be wider than 120 feet. He said he did not know what wider meant and asked if it meant frontage, or street frontage. He also wanted to know how this would be dealt with on a corner lot. Mr. Pounder said it would be nice to try to preserve specimen trees on a site.

Mr. Lance VanLenten, FHBWI, said, “We did a review of the tributaries in Scituate and the map has been updated. We added a buffer for Old Oaken Bucket Pond. All tributaries have buffers. Our members have attended meetings and we have been raising questions about the protection of Old Oaken Bucket Pond. There is a groundwater relationship with Old Oaken Bucket Pond. The groundwater passes under the Greenbush area and it includes tributaries not shown on the map over there. Overall I don’t think anyone has a real issue with the concept of increasing the flexibility of our bylaw to allow mixed residential use. The concerns that we have were reflected by Elinor Foley about the standards for the WRPD. I really recommend that you consider some of the Low Impact Development things. I think this needs to be more specific about BMP’s. The buffer of Old Oaken Bucket Pond is a critical area and it requires twice as much control of stormwater runoff. I think the Zoning Bylaw has language somewhere that refers to stormwater management policy. You should include some of that and be more specific. The other thing is that you have basically a flat area and you do have not a huge amount of impervious surface at the present time but when you start increasing the height of buildings and the density of structures you will have a lot more problems with stormwater and a lot of people are already complaining about stormwater impacts, flooded basements etc. Those problems will probably get worse if you use the language proposed at this moment. I think you should consult with Michael Clark and look at stormwater requirements. I think things need to be more specified in this bylaw so that you can refer back to 510.4. As you know, Michael Clark has been able to get some funding for rain gardens. I think it would be great to make it clear somehow that you will make a strong effort to use BMP’s e.g. use landscaping to protect groundwater and surface water resources.”

Mr. Fenton asked Ms. Harbottle, “Is there any language in here that precludes 510.2 or supercedes it?” Ms. Harbottle replied, “It really can’t.” Mr. Fenton continued, “This is an overlay so the underlining things remain unchanged.” Ms. Harbottle said, “Sometimes when doing a bylaw like this it says e.g. must comply with all of Section 510.2. I agree that some of the language could be pumped up as far as using low impact development. You could put it in that second paragraph where you are talking about the WRPD.” Mr. Fenton said, “So that reference to 510.4 could be appropriate as well.”

Mr. Mike McGurl, 22 Berkshire Road, had questions about the maps. He specifically wanted to know what defined the proposed overlay areas. Ms. Harbottle replied, “The map was put together just to give a general idea of the neighborhoods in that area. It will actually be completely consistent with the existing business district in Greenbush. It will not be anything beyond that.”

Mr. Fenton said, “Just to clarify - we did not change the line around the Jenkins Place portion, right. One earlier version of the map showed moving that area from the zone.

Ms. Harbottle said, “The people from Jenkins Place were contacted as to whether they wanted to get out of the Business Zone but they did not come forward with that. What you could do here – you have to stay within the four corners of what was advertised – you could still cut it back if you wanted to.” Mr. Fenton continued, “I just wanted to make sure that we are not changing the lines because I know there was a discussion about this. We don’t want to complicate the discussion on Town Meeting floor. We may consider doing that in the future e.g. on the Driftway. That is not being proposed at this time.”

Mr. McGurl said, “I attended meetings a couple of years ago and I was upset with that proposal at that time to change the area. I spoke out against that at that point. I also attended all the meetings with Steve Cecil. I felt he listened to what I proposed. I would prefer to keep the Greenbush more residential. On country way – there is no sidewalk there. There is already very busy traffic. Don’t kid yourself – you will need more parking if you add more residents to it and you add density. You will need a lot more. Think what you are creating here. You will have the train with 1000 cars. Drive down Driftway on a Saturday morning and try to go to the dump. Think about what you are creating. Adding density to this area is crazy. It will benefit a few people who will make a buck. We have a nice residential area. The status quo will change significantly. I am very much against adding any density to the Greenbush area – traffic congestion, narrow roads, no sidewalks. I can’t go to all these meetings. I think the Board has a significant responsibility to the residents and business owners who bought property and are living here. We bought here thinking it would not be changed and that it would not be detrimental to what we bought into when we bought our houses. Thank you.”

Mr. Brian Sullivan, Borden Road, said, “I would like to commend the two Larrys for bringing this proposal forward. For the most part I support it wholeheartedly. It is time that we addressed some of these issues. For the first time your Board and the Zoning Board will have some great tools to work with on projects that are going forward. At the initial hearing, you might recall, I suggested expanding the scope of the proposed area in Greenbush to pick up some of the Commercial Zone specifically the lots at the end of McDonald Terrace where my office is located and Dunkin Donuts, Herring Brook Mall, and Bob Drew’s parcel. I think it is a logical extension. At that initial meeting I thought that was met with favorably. This would not be expanding into a residential zone, it would just be picking up some of the commercial zone. To expand it to the area where the train is going to stop makes sense. Now I see that it has been dropped. I don’t know if the Board or Larry wants to address why that is the case.”

Mr. Fenton replied, “Yes, we did have a lengthy discussion on that. Thank you for your ongoing input. I found myself very sensitive to your suggestion philosophically and as I said a moment ago I think the Board has accepted the notion of revisiting that very issue. We are also very sensitive to the comments we received from the gentleman just before you. I think that we thought that given the contentiousness of this discussion we had the last time about changing the location of the Business Zone that that was an issue that we did not want to add to the layers we already had with this complex zoning change. That said, personally, I will encourage the Board to visit that exact issue again. It could answer some of your concerns sir (Mr. McGurl) because that could create more residential on one end of the Greenbush zone while acknowledging that more commercial could happen along the Driftway. I think that the simple answer was that we did not want to add this layer to the discussion this time around. It might have been the wrong call but I would urge you to talk to us at our first meeting after this coming Town Meeting about going forward with that. We consider this implementation of the Master Plan. I think that both of your comments are interestingly not at odds. You may be asking for the same thing but at different ends. I would like to see it go in that direction.”

Mr. Limbacher said, “Yes, I think we were looking to obviate a lot of the discussion that took place the last time. What this does is to look at this area. Once we will get the overlay area we can look at expanding the area.”

Mr. Van Wart, 61 Brook Street, spoke about Old Oaken Bucket Pond, the problem with high phosphate loads, and the need for protection of the Pond before any more further development happens. He stressed the need to protect the water supply and the need to address the invasive plants located out near the Driftway. He listed a number of plants that should be eliminated so that native plants can be encouraged to grow. Mr. VanWart saw the need for clear, technical factors to address the problems with development and impervious surfaces.

Mr. Fenton asked Mr. VanWart, “Would you suggest, as an example, that language acknowledging mitigation measures be included? I may have noted that before because I remember your comments from last time. When we talk about some of the infrastructure improvements we could require of an applicant (depending on what level they were at) – you are suggesting that the language should be somewhat specific when we are talking about this type of mitigation in Greenbush.”

Mr. VanWart replied, “That is correct – eliminating lawns, encouraging native plants, planting rain gardens – those are good examples. It should be specifically brought out as to how to do that.”

Mr. Dan Pallotta asked about Section 560.7 F & G on Page 5. He asked, “You are saying that it must comply with the LIP program. Does the LIP program require the Board of Selectmen to vote? Don’t the Selectmen have to say that the town wants to have the LIP program? The intent is great but the language needs to be addressed.”

Ms. Harbottle replied, “That language is based on the Affordable Accessory Dwelling Bylaw language. You could put something together that could be included in the town’s inventory without going through a 40B. It is really hard to keep the state out of affordable housing. That is a way to make sure that the units are on the town’s inventory and that they are monitored.” Ms. Harbottle described some of the LIP programs criteria.

Mr. Pallotta said, “I think that you are asking someone to virtually apply for a 40B and then you are saying no.”

Mr. Koff explained, “You would not be going through a 40B process. The LIP process is a totally different process. The LIP has certain standards so that the town can get the units registered as affordable units.”

Mr. Pallotta referred back to the discussion on the roof standards (560.8.A) and he suggested that the whole concept of the roofs should be readdressed because the language does not provide the ability to hide the utilities. He said the wording was a little restrictive.”

Mr. Tom McCusker, 50 Gannett Pasture Lane, said he just moved out of the Boston area to Scituate a few months ago. He had questions about the height of the buildings and asked if the guidelines were just for the Harbor area. Ms. Harbottle said, “The other height requirements are the same as they are now.”

Mr. McCusker said it would be a mistake to get rid of even one parking space. He spoke about parking problems in Allston/Brighton. Mr. McCusker said that an increase in the density from 4 to 16 units was outrageous and he questioned whether Scituate could handle that type of increase. He also pointed out that even with the train people will still have cars. Mr. McCusker said he moved to Scituate, particularly the North Scituate area, because it was like a village and he hoped that it remains that way.

Ms. Harbottle said, “Since you are new to Scituate you probably have not seen how the villages have evolved recently. There are some ways that zoning can be pretty flexible. Four units per acre really does not make sense in a village. What is happening is that some of the boards are granting much greater density than the proposed 16 to 20. There is really no alternative for a developer. There are no guidelines on density. Twenty is actually what the state is promoting for a transit oriented village. If you look around Scituate Harbor you will see some pretty dense developments there. It is well over twenty. It is a lot more. This will actually impose control over some of that. This is only in the villages and not in the residential zoning districts.”

Mr. McCusker described parking problems in Boston because of condo owners who park all over the place because the condo owner does not want to pay for a parking space when he buys the condo.

Mrs. Brennan said, “You have only been here a few months. I moved here in 1958 and I am still considered the new kid on the block. I have seen a lot of things change. What I always thought was scary was that we allow things to happen because we did not make any effort to plan. We need to put things in place before something happens and this is an effort towards doing that. If you don’t have any restrictions or any kind of guidelines – then there is nothing for our Zoning Officer to use and enforce. Your input is wonderful but we are not encouraging density. The density will come willy-nilly unless we put something like this in place. I get the impression that we are encouraging density and that is not the case. We are not really encouraging Greenbush to look like Allston/Brighton.”

Mr. Fenton said, “These are minimum parking requirements and certainly if a developer thinks that would be an issue for his residents he will provide more spaces.”

Mr. Paul Scott of the DPW said he represented the Traffic Rules Committee. He spoke in detail about the use of the town’s municipal parking lots. He said he was not sure it would be possible to use the MBTA parking lots. He suggested that there should be a parking requirement that requires a developer to provide on site parking for all the uses on a site?”.

Mr. Koff said, “This is a village where there is shared parking. Shared parking is a tradition in many areas e.g. retail use during the day and restaurant use at night. The lots in North Scituate are very small and there is limited parking. We are providing a vehicle for the Planning Board to have some discretion. The developer will have to justify – this is not as of right it is a Special Permit. The developer will have to show how the shared parking will work.”

Mr. Scott again suggested that a developer should be made to have on-site parking instead of relying on municipal lots. Mr. Koff said, “In a village setting you want to create a balance It will be on a case by case basis and it will be up to the Planning Board to work this out all the time.”

Mr. Fenton said, “I think that is a critical point. In both cases (residential and business) think about what you are trying to do – some of the small lots could not be developed for an apartment if there is a strict requirement for on-site parking. You may say that an apartment should not be there but there are many cases where municipal parking can provide an alternative. Keep in mind there are acres and acres of asphalt. I have never gotten a clear answer on how the MBTA lots are going to operate on off peak times such as weekends. I think those are huge windows of opportunity. We need the flexibility. For example – the new lot where the tennis courts are in North Scituate perhaps could be available for residents on nights and weekends. I would not want to see those huge areas of asphalt not being used on weekends when there are no commuters there.”

Mr. Scott said he thought there would be fees associated with the MBTA parking lots. fees. He said there was very limited space in the municipal lot in North Scituate.

Mr. Mike Rezendes, 20 Brookland Road, asked about Section 560.5 regarding bonus density requirements and the fact that a development can obtain a density bonus provided that he makes significant improvements providing a public benefit. Mr. Rezendes asked about the timeframe involved with that and he gave an example of a developer requesting a density bonus and offering to do some public benefit years down the road. Mr. Limbacher said that was a good point. Mr. Rezendes also asked if there were any guidelines or format with which the Planning Board must refer to or abide by when making a decision as to when to grant the extra density or is it totally in the Board’s discretion and if there were any guidelines that the townspeople could refer to.

Mr. Limbacher replied, “Valid points - timeframe and linkage is valid. I have been grappling with the extra density thing. I have not really thought through the timeframe thing. How do I leave something in place for future Planning Boards to deal with it?”

Mr. Fenton said, “I will offer this because of my experience in working around the country on transit issues, pedestrian access, bike paths - it is a balancing act. The discussion about the parking is a great example. The more specific you build the bylaw the much more challenging it is to get it through a town vote. As you add layers of specificity it can rub somebody the wrong way and then the entire bylaw falls apart e.g. because one person is concerned about the 1.5 parking spaces. . I am not making light of that discussion or your ideas by the way. I say that with all due respect to people concerned about the parking. You walk a fine line between trusting the discretion of the Board – the great advantage that we have here is that we are an elected board and not an appointed board so the community has much more control over the tenor of this Board because you can vote us off. I think that this language finds that balance reasonably well and I hope that does not sound too self-serving in that it does provide a pretty clear framework for what the applicant has to do to get to the first level and even to the second level. I want to think about some of the comments tonight such as the language Mr. VanWart suggested about the BMP’s and the water management issues. At the same time you should recognize that if it is made extraordinary specific there is no way that we will ever get it passed and then the only way high density will happen in the town centers is through the ZBA. That is what we are talking about. If that happens then the ZBA won’t have any guidance. This is not a comment on their ability to do it. This, at least, gives some guidelines to this Board and to the ZBA when something comes through their channels.”

Mr. Rezendes pointed out that the Board was proposing a bylaw that will be in effect in perpetuity for this Board and the Board’s successors. He said he understood the Board’s need for discretion but he questions whether there should be discretion without any parameters of any kind. The bonus density more than doubles the standard.

Mrs. Brennan referred to Mr. Rezendes earlier question about the timeframe and she suggested that the Board should, when approving a bonus density, should always make a Condition of Approval that sets up a specific timeframe. Mr. Fenton agreed that the Board’s Conditions must be very specific.

Mrs. Brennan told Mr. Scott that the Planning Board is very aware of parking issues and she explained that on a recent project before the Board (The Residences at Herring Brook) there was an agreement successfully worked out regarding a shared parking arrangement between the developer and the owner of abutting property.

Mr. John Arbib, 157 Bulrush Farm Road, said he agreed with Mr. Fenton about keeping the proposed bylaw general and not making it too specific. He referred to Section 560.5. and he said that he did not see anything in the language that would permit the Planning Board to insist on a developer providing stormwater solutions. Mr. Arbib said the language seemed to be refer just to septic. Mr. Limbacher said, “Mr. VanWart made a suggestion and I made a note about that.”

Mr. Pounder asked, “On the density – how do you think about including the Design Review Board in the recommendation on the density so that all of the authority is focused on one Board? The Board can make the decision but you can have the recommendation from the Design Review Board. If there was a back and forth between the two boards it would be helpful.” Mr. Fenton said, “Perhaps we could add something about the Design Review Board.”

Mr. Van Lenten said, “I am speaking now as the former chairman of Water Study committee. We found in our research that there is a lack of 3-dimensional understanding of our town. Everything is presented in a very 2-dimensional way. We have an aquifer under this area. [He explained what the term ‘aquifer’ meant.] It passes underneath Greenbush and goes into the Reservoir. Some towns have a bylaw that specifies certain erosion and sedimentation controls. You may want to add that to the Greenbush area. We have a report on sedimentation and erosion control that should be included.” Mr. Van Lenten spoke about water studies done for the area regarding algae and the type of nutrients coming from the roadways. You have to look at this as a 3-dimensional project. You need monitoring wells. We have the information on the tributaries. I don’t know how you can gather all this information you should have in time for Town Meeting. As it stands right now you are looking at a 2-dimensional plan for a piece of land that has 3-dimensional aspects.”

Ms. Harbottle said, “I think that the Planning Board has more awareness than you are aware of. We had informal discussion with property owner in Greenbush and we did have a discussion of where specifically the septic system would have to be located. The question of sewer versus septic is obviously a big issue in Greenbush.”

Mr. Van Lenten said, “You have to, as a town, respond to the stormwater requirements. You are adding impervious surfaces with these density bonus. We are putting the cart before the horse. You are not using the DEP maps and that is a concern.”

Ms. Harbottle said, “I just want to go back to density issue. Now you have up to 50 units per acre in Scituate Harbor because we have no guidelines in place so it is hard to argue against a bylaw that proposes 16-20. You need to look at the whole picture.”

Mr. Van Lenten responded, “I would argue that this is next to the Reservoir. You need to do a lot more. You need to determine where the groundwater is. People in Greenbush have problems with water in their basements. The sewer situation is bad. There is a limitation on the amount of water that we can treat in the Treatment Plant. We have infrastructure problems that are huge. You are going to have to get language in there. There is a need for vital protection.”

Mr. Limbacher said, “I am not sure that we disagree with what you are saying. We recognize that we have to tighten up the language that we got. Any other questions or comments?”

Mr. McGurl said, “The statement was made that this will be a transit oriented village, but everyone in Scituate who can afford to have a car will have a car. There is no intermodal connection. First of all you have to understand the car situation. Using our municipal lots is crazy. If someone can’t meet the parking requirements because he has a small lot then too bad - then he should not have his project approved. I have some strong opinions on how I would like to see this thing go. What is the best way for me to get my ideas on record. Should I write a letter? Yes, development will happen but should it be 2 units/acre, 10 units/acre. I can’t come to everyone of these meetings. What is the best way to get on record?”

Mr. Limbacher replied, “You should write to this board as to what your position is and tell us what your recommendations are.”

Mr. McGurl asked, “How did you come up with 16 to 20 units?” Mr. Fenton said, “I will give you my answer as to how I accepted that rationale. We are seeing things as high as 50 units/acre. We presume that development will happen – perhaps it won’t because there may be things that will stop it from happening at all – but recent evidence in this town suggests otherwise. Having accepted that, I think we want to walk a line that allows some economic viability without creating the extreme development like we have seen with some of the developments in the Harbor. That may be a gross simplification.”

Mr. Larry Bluestone said, “We actually showed what each density would look like with 3-dimensional illustrations. The numbers came from how each density would look on a site with the parking etc. At earlier meetings people found it to be acceptable. You can go on the web and look up our information.”

Mr. Pounder said, “I want to say something in favor of reduced parking because most of the comments have been against it. If you allow 2 parking spaces per bedroom it will get filled up. You can reduce the number of cars by controlling no overnight parking. I think it is the right move to try to reduce the density of the cars as opposed to encouraging more cars. I question being able to use the MBTA lots as part of your formula for rationalization. I do think that reducing the number of spaces is a positive.”

Mr. Bluestone said, “Let me just point out – parking is an important issue. Remember that the parking limit listed in the bylaw is a minimum. Anyone who builds units needs to sell them so they may want to up the amount of parking provided. The market determines the maximum.”

Mr. Al Bangert, 108 Capt. Pierce Road, said, “There is excellent work in here. I have a question for clarification. At Town Meeting how will it be dealt with? Will it be one size fits all or all or nothing or will their be amendments? Can citizens respond at Town Meeting?”

Mr. Limbacher replied, “Based on the very good input we got tonight obviously there is some additional work that needs to be done on the document. There are some areas that need additional work. I suspect that we will have a similar meeting like we are having now and finalize the document to go to Town Meeting. To the extent that there are amendments and they are good amendments that are logical we can move to incorporate them. That is the standard process. What we have tried to do – with a high degree of success – we got good attendance at these meetings. We want to get the word out prior to Town Meeting. We will go through the exercise here and we will be going to the Selectmen and the Advisory Board on this.”

Ms. Harbottle explained, “January 19th is the drop dead date for all the changes need to be in to the corner office to go on the Warrant. We may need to meet next week Jan. 12th to finalize this.”

Mr. Limbacher said, “I like to see zoning voted up or down. I don’t like to see just a knee jerk reaction at Town Meeting. If you can’t come to a meeting you can write us a note with your suggestions and I will tell you that I personally read everything.”

Mrs. Peg Doran, 540 Hatherly Road, pointed out that everyone is talking about out parking and being able to get on the train but in Scituate you need a car to get around to all these villages.

Mr. Paul Mirabito said, “In Section 560.4 they talk about Minimum Lot Area Per Dwelling Unit, I am assuming that there is no minimum lot size for a mixed use building. So there is no about minimum lot area per dwelling unit. Of the three areas that you are planning for this zoning bylaw two of them (Harbor and Greenbush) are on sewer. Is it anticipated that the structures that will be built under this bylaw will automatically be allowed to tie into the sewer? Having said that, if you were to pass this with even half the amount of density, I don’t see how these buildings can be built because where are you going to put the sewer flow? And if you are in the Greenbush area you are subject to very strict regulations on the books right now for the placement of septic systems and the number of gallons of waste water that you can put in the ground. You are only looking at four bedrooms per acre.”

Mr. Fenton said, “Someone might have said the same thing about the Harbor ten years ago. It does not hurt to have this in place in anticipation of the time when the sewer capacity is increased. There is not even sewerage there yet in North Scituate.”

Mr. Mirabito continued, “The point that I am making is that if you are in a restricted area for sewer flows under DEP Regulations you will see very slow growth in the Greenbush area. You will not see the expansion of houses that you think you are going to see until the Sewer Plant is expanded.”

Some of the members indicated that they disagreed with Mr. Mirabito. Ms. Harbottle said, “I think this will work with redevelopment rather than new development. There is a history of taking existing flows and reallocating them.”

Mr. Mirabito said, “The bottom line is in the short term until you have a new plant in Scituate the number of bedrooms that you will be able to add will be extremely limited. You will not see the increase in the number of units and the traffic that you think you might see.” Mr. Limbacher said, “It will be over a period of time.”

Mrs. Brennan said, “We are trying to be pro active.” Mr. Mirabito said, “That is good. I am not saying that this is bad. A lot of people think that once this is passed a lot of buildings will go up immediately because of the train and that will not happen because there will be no sewer.”

Mrs. Chisholm said, “The reason that I am on this Board is because of my frustration years ago with the train coming. I lived on Stockbridge Road at the time and I found out that they wanted to put the layover facility at what is now the Transfer Station. We fought it and got it out of there. So I do understand where you are coming from, but being on the Board I have learned that sometimes change is good. If we do nothing now we are going to end up with CVS buildings. I work at CVS and I hear about it every day. There was nothing that we could do about it. It was approved because that is what was allowed. If we don’t change the zoning as it is we will end up with buildings like that. We are going to have traffic – expect 1000 cars/day with the train. Country Way/Driftway/Stockbridge Road will be worse than it is now. The train is going to do that. We need to make these changes in order to get what we want and to keep what little bit we can under control. That is what we need and that is what I hope everyone sees. There are a lot of issues to go through and they might be hard to resolve. We will have to figure out how to resolve it. This will not happen right away, it will be over the years. We will see beautiful villages coming into play and that is what we want.” Mr. Limbacher relied, “Those are excellent comments.”

Mr. Koff said, “We have enjoyed working with you.”

Mr. Limbacher said, “I want to thank everyone for coming out. I appreciate the time and the effort you put into it. I appreciate the input. It reinforces a lot of the discussion that we have had - some civil and some more heated especially about the traffic and the Water Resource Protection District issues. What I am hearing is that there is a fair amount of consensus to go forward with what we have got although it does need some additional work. We can do it on January 12th.”

Ms. Harbottle said, “If you want I can go over everything and put it on the web site.” Mr. Limbacher said that he thought it would be a good idea to put it on the web site and both he and Mr. Fenton offered to make some comments regarding the document.

Mr. Limbacher said, “The next two zoning articles that we want to discuss will be Site Plan Design Review and Building Height. I think there are copies over there that are available. We have adopted these Design Guidelines so currently they are in place. What we are looking to do is to formalize the Guidelines that we have for Site Plan Review as a bylaw and call it Section 950. What is reflected here is what is currently adopted and in place.”

Ms. Harbottle said, “The Planning Board has had a Design Review Committee (DRC) for years. This bylaw would help with the DRC meeting procedures and also set out some guidelines. This will make sure that every single building goes through this process. We had a couple over the last year of so that somehow over the last year or so did not go through the process e.g. CVS. It is too bad that that happened. This will make it a more formal procedure.”

Mr. Walter said, “Just to add – the idea is not to stifle design but to encourage a good look at what we have in town in terms of some of our architecture. CVS is, in fact, an example. Although it did not come out as we would have liked ultimately it came a long way from what it could have been if the initial plans had been adopted as they were presented to us. With this new bylaw we could make it better than what it is. If you talk about scale, materials, and colors you can change the way a building looks. If you take a walk along the Harbor are and you see some of the newer developments and the existing developments you will realize that there is quite a bit of variation in the height of buildings and that is okay. Taller buildings can be just as successful as two-story buildings. A lot depends on the façade of the building e.g. window openings versus solid. The facades are important because the front of the building addresses the street in terms of proximity. As you walk along the front of the street you can see quite a bit of variation and that adds to the character of the street façade. These guidelines are really to assist an applicant in working with us. We have a lot here that we want to cherish and keep.”

The Chair called for questions from the public.

Mr. Max Pounder said, “I question calling it site plan design review. A site plan is different from what we are talking about here. I think you should just call it ‘design review’. The first section refers to Section 770 (Site Plan Special Permits).

If I read this correctly you are limiting the design review to special permits. You should say that the Planning Board can refer anything to the DRC. Under the section about application materials – I would include a roof plan showing the proposed mechanical equipment. Right now you just ask for floor plans and elevations. Architects never show the mechanical equipment for the roof so you should require a roof plan showing the mechanical equipment if it does not appear on the elevation. The last comment is that there should be something in here on existing trees so there will be at least an attempt to save existing trees from development.”

Mr. Mark Dickinson, 8 Bassin Lane, said, “Is this an informal guideline that the Planning Board uses now and that you want codified?” Mr. Limbacher replied, “Yes, what we have done is that we have voted it and adopted it. It currently is in place. What it does is to take it and formally puts it into the bylaw.” Mr. Dickinson continued, “I think it is a good idea to have a Design Review process. I am commercial developer but not in Scituate. The two things that bother me about design review is that there are really no objective criteria. It is totally subjective. I am not sure what the solution is. It bothers me that there is no timeframe involved with the Design Review process in terms of when the plan is submitted and what the timeframe is for the review process.”

Mr. Dan Pallotta said, “I don’t think that this should be in the Zoning Bylaw. You have it as a guideline. I don’t think you can regulate aesthetics. I think it should be in the General Bylaw or someplace else and not in the Zoning Bylaw. That is a mistake. The idea is great and the process is great , but he is correct you need a time line to protect both the Board and a developer. Think about it.”

Mr. Limbacher asked Mr. Pallotta to explain why he thought it was a mistake to put the Design Review Guidelines in the Zoning Bylaw. Mr. Pallotta replied, “I think there is language in Ch. 40A that that you could not deny a project based on aesthetics. You are trying to tell me what is good and bad with regards to design. The actual design should not be in the Zoning Bylaw Even a historic bylaw is usually in the General Bylaws.”

Mrs. Brennan said, “Perhaps we want to be mavericks. I think we have to listen to people’s input and use comment sense.” Mr. Pallotta said, “Yes you should get the input but I don’t think it should be in zoning.”

Ms. Harbottle said, “I think the way this is written is the same as the DRC that the Board has now. It has never been a separate reject board. They give us input on applications. They did a great job on Dunkin Donuts on the Driftway and they worked with the owner of the building. It was never a threat that Dunkin Donuts would not get approval. As far as the time frame goes that is a good point. I guess we could say that they have to provide their input to the Planning Board before the first public hearing. We could say that. As far as the Zoning Bylaw and General Bylaw - there are a lot of towns that have these in their zoning bylaws.”

Mr. Pallotta continued, “I am not saying eliminate the process. But you have language in there about visually compatible. Define ‘visually compatible’.” Ms. Harbottle said, “I understand.”

Mr. Bjorklund said, “One gentleman talked about the procedures of Section 770 - if you want to adopt that in the Applicability Section you should say that single family dwellings are exempt from that.” Ms. Harbottle described the provisions of Section 770 Site Plan Special Permit noting that it was not for single and two-family dwellings.

Mr. Dickinson said that the Town of Redding has an excellent Design Review Bylaw. It can be seen on the Web.

Mr. Limbacher said, “If you look under paragraph E it says that some of the elements have to be addressed but not all of them. We want to give developers some guidelines e.g. don’t come in with a square box.”

Mr. Pallotta asked, “What happens if they meet all the requirements and you hate the building?” Mr. Limbacher replied, “It would not be unlike what happened with your building where there was a lot of going back and forth. We talked about what your building looked like and some changes that could be made to the external wall. We talked about the existing vegetation, the access to the parking, and that sort of thing. That is the process that took place and that is the process that we see here.”

Mr. Jeff DeLisi, Country Way said, “Does this section empower the Board to deny a project if the Board does not like the look of it?” Mr. Limbacher replied, “The answer is no. It says how we are going to be looking at the project. It lists the criteria that we will use.” Mr. DeLisi continued, “Along the lines of the subjectiveness of it – what is meant by substantial improvement? Who determines which project that the DRC will review? Some of it seems quite subjective to me. I like to know what rules you are working with when doing a project. I like to try to address those in an application as best you can. I think it will be difficult to do that because much is subjective.”

Mr. Walter replied, “What is important thing is that they are called ‘guidelines’. This helps us develop a dialogue for a back and forth conversation. We don’t pretend to have all the answers. This allows an applicant to present their idea and thoughts. Hopefully we can come to a common ground. The public will have a chance to provide input also. I hear what you are saying in terms of trying to advise your client, but look around and bring in something with community flavor that continues the character that we have.”

Mr. Bjorklund said, “Under DRC under Paragraph B it says that it shall consist of three members. What happens if you don’t have three architectural people on the Committee? Will a project goes through without the DRC? It says ‘shall’. Do we forget the whole bylaw?” Ms. Harbottle suggested that the word could be changed to should rather than shall.

There was a brief discussion about the CVS building. Mr. Fenton said that the Board should begin a conversation with a developer early on in the application process.

Mr. Pounder said, “The wording does not require that the members of the DRC be architects. It says ‘or related professions’. In terms of the time line it needs to be related to the site approval process. Third, lets approach it as a positive. The applicant is getting thousands of dollars of free advice. That is the positive side.”

There were no further questions/comments about the Site Design Guidelines at this point.

RESIDENTIAL HEIGHT: Mr. Neil Duggan, Building Commissioner/ZEO, was present. Mr. Limbacher described how the present height measurements were being done. The proposed bylaw would make some changes to that.

Mr. Scott Greenblaum, 40 Damon Road, expressed his concerns about the height of buildings, particular in the Sand Hills area of town. He suggested the need to limit the height of a building on one side and suggested that perhaps dealing with just the average grade was not the correct approach – perhaps the lowest point of the property would be a better approach. He offered some scenarios to illustrate the points he was making.

Mr. John Arbib, Bulrush Farm Road, asked, “The average finished grade – is that the first finished floor?” Mr. Duggan replied, “The finished grade is the ground. It is a very confusing bylaw and it has been on the books since 1953. When I arrived here 11 years ago - I suggested changing the 40 feet to 35 feet. We never changed the way we measured it. You go from the top of the ridge to the gutter line – so right in the middle of that. Actually if it was a Swiss Chalet it could be 70 feet tall because the mid point is 35 feet. It appears that we are making it higher than 35 feet but what we are really doing is limiting the pitch of the roof. Some architects really push the envelope and I find that frustrating. [Mr. Duggan offered some examples of the existing and proposed ways of measuring height for different roof styles.] I think this needs some more work. We have allowed three stories since 1953. We have always had the opportunity to build McMansions but people just began to do that even though they have been able to do it for years. This year we will address it.”

Mrs. Peg Doran, 540 Hatherly Road, spoke about the proposed development at 21-23 Musquashicut Avenue. She said, “That is measured from 6’ of fill. I don’t think that the measurement should come from fill. It should come from ground level in order to have things equal. Some people can put fill in and some people can’t. I don’t think the measurement should come from fill because you are not really talking about 30 feet in a neighborhood. It will be 6 feet plus 30 feet. Now if you change this they can go even higher.”

Mr. Duggan replied, “That can be a problem. We don’t define the existing grade. In a development you can end up with houses on one side of the street very low and on the other side of the street very high. Typically Building Inspectors don’t suggest zoning and we don’t get into the details. I really support making a change. I don’t know if we can amend this proposed bylaw at this stage of the game. Can we?” Mr. Limbacher replied, “It depends on the change. We are bounded by the four corners.” Mr. Duggan continued, “Someone really needs to work on this for several weeks. We should look at other towns to see their bylaws. Because people are now pushing the envelope, I want the change to be made. I am in support of having this bylaw change.”

Mr. Limbacher asked Mr. Duggan, “Are you suggesting that we not do this but do something more?” Mr. Duggan said, “This is an incremental change. We should do this now but continue to look at the whole picture.”

Mr. Fenton said, “I hear Neil saying that this deals with the top part. It clarifies how you measure the top and make it work better. It will clean up this part of the puzzle. It does not discuss other issues like finished grade. Where we start the measurement is the other end of the puzzle. I think that we can safety do this now without addressing the bottom half and in the future we can take a more thoughtful look at the more complicated issues.”

There was a brief discussion about houses that were up on pilings. Mr. Pallotta noted that FEMA keeps on changing their regulations regarding pilings. Changes to the height of the pilings changes the height of the houses. Mr. Dan Pallotta questioned whether houses on pilings will become non conforming and what would happen if the owners of a house on pilings wanted to do an alteration.

Mr. Duggan said, “I don’t think there will be a problem with houses on ocean as they will continue to be pre-existing nonconforming.”

Mr. Bjorklund pointed out, “Most of the houses near the ocean are on small lots so they are already non-conforming.

Mrs. Elinor Foley referred to a drawing done by the Town Planner to illustrate the height measurements. Ms. Harbottle said that the drawing depicted the average finished grade.

Mrs. Foley said, ‘In our area there is 6’ of fill and then 35’ or 40’ – it is high. You need to think about that.” Mr. Duggan replied, “With this bylaw we are making it more restrictive.”

In response to a question from the audience, Ms. Harbottle said, “The 40’ will be the ultimate top. The 35’ may not matter so much any more because that mid point may be below 35’.”

Mr. Bjorklund said, “A couple of years ago we talked about the differences between buildings and structures. I know the bylaw was changed to add the word ‘structure’. I wonder if this should say height of a structure or building and not just building.” Mr. Duggan replied, “You need to consider church steeples, telephone poles. You need to be careful. Again, you need to look and see what it will impact.” Mr. Fenton said, “We don’t want it to impact a chimney for example. Mr. Duggan said, “Chimneys are exempt.”

It was noted that there are four water related articles to be considered at Town Meeting.

See legal advertisement for details. Number 5, 6, and 7 are being brought forth by the Water Study Committee. Number 8 is a petitioned article.

Mrs. Shan Morrissey, Chairman of the Water Study Committee read a brief opening statement. A video explaining the work done by the FHBWI regarding the protection of Scituate’s water supply was shown. Some of the topics discussed in this video were: the area of Scituate’s watershed including the location of the South Swamp/First Herring Brook/Tack Factory Pond/Old Oaken Bucket Pond, the location of various tributaries and buffer zones, the location of site visits by the Stream Team, existing Water Resource Protection District Bylaw, the development of a draft map in 2003, and a report (including reference maps of previously unmapped tributaries) on the project. It was noted that copies of the report and maps were given to Scituate Town Boards, Town Boards in neighboring towns, and DEP and that in July of 2004 Bruce Bouch, DEP Drinking Water Program, visited Scituate and verified the location of tributaries described in the report. A letter from DEP saying that the map was official was given to all Boards. [A copy of the video can be obtained from the FHBWI.]

Mrs. Morrissey said, “With these proposed zoning articles we are not creating restrictions for land uses and activities in town. The purpose for all of them is to clarify protection that currently exists in the Zoning Bylaws voted in 1987 and 2004. I would also like to refer to a letter to the Board of Selectmen dated December 20th from the Water Study Committee.” [Mrs. Morrissey read portions of this letter aloud. See file for a copy of this letter.]

Mrs. Morrissey then discussed Scituate’s Water Withdrawal Permit noting that 2009 is the projected date for an increase in the Water Withdrawal Permit. She said, “According to the 2005 figures approximately 120 housing units worth of water are left in our current permit and right now we have about 200 housing units in various steps along the pipe line. To qualify for an increase we have to be in compliance with all DEP’s Drinking Water Regulations.”

Mrs. Morrissey continued, “Currently we don’t have a definition of a ‘tributary’ in our bylaws and we really need to have that clarified. In 2004 Town Boards unanimously supported a Zoning Bylaw amendment to further protect Old Oaken Bucket Pond with Zone A protection and it was amended to comply with State laws for drinking water protection.. These articles will clarify the protection voted in the 2004 as documented by DEP’s drinking water program so that the Town will be in full compliance when we ask for an increase in our Water Withdrawal Permit.”

Ms. Harbottle said, “Everything that I looked into complies with what is being presented. The definition of tributary is what DEP says for a tributary. This is really hard to use under zoning because it is very broad as it talks about water flowing in the ground. I don’t know if that means in the ground or under the ground or over the ground. One of the things that seems like it would be a really nice solution to some of this is to take a lot of this language on water resource issues and put them in the General Bylaw rather than in the Zoning Bylaw. That may seem like that is something that only I want to do but actually DEP wants to do it that way and the Atty. General who reviews zoning agrees. There are a couple of reasons for that and one reason is that there is a lot of grandfathering available under zoning and you don’t really want that to be available. The other thing is that when you put a bylaw in Zoning it opens up a lot of possibilities for of litigation. This makes these bylaws hard for towns to enforce. That is another reason for having it in the General Bylaw. A couple of other reasons for having it in the General Bylaw are - when you are dealing with environmental issues you are dealing with something that is usually a Conservation of Board of Health issue as opposed to something under the Building Department, who is looking at structures on the ground (issues that are concrete and definable). Here we are talking about things like impact to a water supply that could be mitigated or not mitigated. So I think that one of the main things that should be looked at is to see if this should really be a General Bylaw. I think that Conservation has not met to talk about this yet but they should be meeting on it within the next week or so. It will be important to hear from them. Their Chairman is a consultant on water quality issues.”

Mr. Fenton asked, “Is it possible for us to move it to a General Bylaw in this round?”.

Mr. Lance Van Lenten replied, “DEP wants it as a Zoning Bylaw. There is no way to put it into the General Bylaw.” Ms. Harbottle said, “I will respectfully disagree. I did speak with a person (Catherine Hamilton) at DEP who wrote some of the letters and she said that the General Bylaw would be fine. I am sure there is some way to do it now. A General Bylaw does not have to be advertised the way a Zoning Bylaw does.”

Mr. Duggan said, “I will agree with Laura. Two years ago (2004 Town Meeting) the Town received a letter from DEP and it said that we need to incorporate these into bylaws but they never said Zoning Bylaws. In fact I wrote a letter to Town Counsel stating that some of things that gave me jurisdiction over statutory areas were really things that should have been under Conservation and Board of Health. It is a real juxtaposition of statutory duties. I would very much be interested in seeing the letter that says it has to be in the Zoning Bylaw. I have not seen that letter.” Mr. Van Lenten showed Mr. Duggan a letter and he said it references the Protection District. Ms. Harbottle described conversations she had with the Atty. General’s office on this subject.

Mrs. Morrissey said, “In response to that, I would not want to change it right now. It may be a fine suggestion. [Mrs. Morrissey read a June 2004 letter from Catherine Hamilton. See file.] I am not saying that we are adverse to this. I am just saying that this needs to be thoroughly explored so that no errors are made. I also understand Neil’s concerns about where jurisdiction and enforcement ends up when it is in the Zoning Bylaw versus the General Bylaw.”

Mr. Duggan said, “I just read the letter. The way that I read this letter is that DEP is satisfied that their requirements have been met because they have been placed into our Zoning Bylaw but it does not say that we are required to put them in the Zoning Bylaw.

The point I made two years ago was that many of these points actually belong in the General Bylaw. Example: no swimming is allowed in Old Oaken Bucket Pond. If a bunch of teenagers are swimming in the Pond at one o’clock in the morning will they call the Building Inspector? It should be in the General Bylaw enforced by the Police Department. I don’t have arrest powers. I would be violating people’s civil rights if I tried to arrest them. The way I enforce the Bylaw is to send a letter telling people to cease and desist. This needs to be in the General Bylaw.”

Mrs. Morrissey said, “The Water Protection District is in the Zoning Bylaw.” Mr. Duggan replied, “Yes, for now.”

Mr. Van Lenten explained, “When a community wants to increase its withdrawal you have to have in place local controls. It also says that if controls are removed the community has 120 days to fix it.” Mr. Duggan said, “I am saying leave it where it is for now but lets sit down and figure it out and fix it.” Mrs. Morrissey pointed out that the language about no swimming in Old Oaken Bucket Pond has been in the Zoning Bylaw since 2004 when the Bylaw passed.

Mr. Fenton asked, “Do you have a strong feeling for it to be in Zoning?” Mrs. Morrissey replied, “Because DEP required it.”

Mr. Van Lenten said, “You have to understand that our articles don’t change restrictions, land use, prohibitions, or activities. These were already voted in at a different Town Meeting. Tonight we have a map that shows information that complies with State law and the bylaw that is in place. We have the map plus two definitions that match what we already have in place. New amendment possibilities could be done next year at Town Meeting. I think we should go forward with what we have now.”

Mrs. Brennan asked, “So this is just to make it compliant?” Mrs. Morrissey replied, “We did not have a map reference before. This map shows what we have and what is protected and was verified by DEP. This map is what we have already passed in 1987 and 2004”

Mr. Adam Kahn said, “I am an environmental lawyer and I represent Popes Pond Cranberry Company. Their property is completely surrounded by the line over there. I want to correct a number of things that are inaccuracies about this bylaw. I have three main points. The Bylaw is wrong from a technical perspective because the protections that are sought by the Bylaw are already in place so the Bylaw is not necessary. The map that is proposed will create radically different restrictions on land that exists today. The reason why it is significant – the Scituate Bylaw has a 150’ non disturbance zone around Tack Factory Pond and its tributaries. What that means is that no permanent structures, no earth moving, no vegetation cutting – there is an absolute prohibition on uses on the property. This is zero zoning. It is not true that these provisions are in place already. Mr. Van Lenten filed for a determination with Mr. Duggan as to where the 150’ zone applies to the Popes Pond Cranberry Company. Mr. Duggan determined it didn’t and the ZBA determined it didn’t. So the law as it exists right now is that the 150’ non disturb zone does not apply to Popes Pond Cranberry Company and it doesn’t apply to anybody else.”

Mr. Walter asked about the line Mr. Kahn was talking about and where that line was shown on the existing map. Mr. Kahn showed Mr. Walter what he was talking about and he said, “The map, as proposed, shows this circle to be adopted here. There is a light blue line that says that Tack Factory Pond and its tributaries are protected by the 150’ non disturb buffer zone. It goes entirely around the bog. If that is not what is intended by the bylaw then the map should be changed.”

Mr. Walter asked, “Where is the line drawn right now on the existing map?” Mr. Kahn replied, “There is no map right now. This is an attempt to prepare a map.”

Mr. Van Lenten said, “DEP has shown a Zone A around that bog for years.” Mr. Kahn replied, “The issue with Zone A is that it imposes a number of significant restrictions – restrictions on where septic systems can go, restrictions on impervious surface. Those are in place. The 150’ non disturbance zone is what is shown on this map. This is not just for the bog. It applies to many other private property owners . I have a list of the different roads that will be effected. The 150’ non disturb zone is something new. It is in the bylaw but it has never been interpreted in this manner. The ZBA has already determined that it does not apply to the bog. Right now that ZBA determination stands.”

I could go on at length but those are my main points.”

Mr. Limbacher said, “So you are saying that the proposed bylaw is really not needed.” Mr. Kahn replied, “Yes, there are already ample protections.” Mr. Limbacher continued, “Your second point was that the proposal has radical restrictions that are new.” Mr. Kahn said, “Yes, and the last point is that it is technically incorrect. If it shows the bog as being a tributary to Tack Factory Pond that has been determined not to be correct by the ZBA and it is not correct by science. [Mr. Kahn read portions of a letter he had from DEP regarding the bog and the diversion ditch/structure.] That structure must be maintained for the protection of public health and that structure is a barrier that prevents water from flowing from our bog into Tack Factory Pond. It was installed by the Town back in the 1950’s for this exact purpose. So according to DEP water should not be allowed to flow there and the ditch prevents the water from flowing from our bog to the Reservoir. DEP wants that structure maintained.”

Mrs. Morrissey said, “We are arguing about bylaws that are already in place. We are not adding new restrictions. Number 2 – we did not create that map. That map was created by DEP and so if you have an issue about a tributary that is defined by DEP there is a process that you must go through. That map is not our creation. I don’t understand why it is being stated as fact that we are adding protections that did not previously exist. There are 1987 and 2004 bylaws that give the protections represented on that map.”

Mr. Fenton said, “So you would assert that 1987 and 2004 already passed bylaws determine that this is a non-disturb zone.” Mrs. Morrissey replied, “Yes, in our bylaw 510.5 which was passed in 1987 provides for a non disturbance zone around all the tributaries that go to Tack Factory Pond.”

Mr. Fenton said, “So to be clear this argument hinges on the definition of tributary. If one accepts that it is defined as a tributary then one accepts there is pre-existing language that puts it in the non-disturb zone, almost irrelevant of who draws the map.” Mrs. Morrissey replied, “DEP has the right to determine that that is a tributary.“ Mr. Fenton continued, “My point is that you then have to accept that that map does appropriately identify this as a tributary. One of your points (Mr. Kahn) is that you are saying that this is radically different. I am not trying to advance the argument either way.”

Mr. Van Lenten said, “In1987 the town was reviewed by IEP Inc. and that consultant created the non-disturbance zone along with many other things that we have in our bylaw. . That bylaw was voted at Town Meeting in 1987. That bylaw has been used by the Zoning Department. The work that went into the First Herring Brook Project was led by Wally Arcand who was on the steering committee and on the ZBA and it included other officials. There was a reference to the bog. The tributary definitions proposed tonight only reflect on the water that flows not the geographical features. So there has been no change in the protections since 1987 or 2004 reflected in any of these three articles. The court case that has been brought up by Mr. Kahn has no bearing on any decision made by Town Meeting in the future because that case has been determined by what happened on the date of August 2004. So what you decide tonight has no bearing on the court case whatsoever nor does what you decide at Town Meeting. Shan has been very clear about this. I think it is crystal clear and you saw the video. The thing is that these two bylaws have been voted in but we have never had a map and the map just shows things in a more detailed way.”

Mrs. Morrissey said, “I would like to add that we have several letters from people like Catherine Hamilton addressing the tributary issue, the diversion structure, impacts on Tack Factory Pond. It talks about base flow and groundwater and whether the diversion is in operation or not. There is still a channel and there is still ground flow going to Old Oaken Bucket Pond. [See file for a series of letters regarding the water issues.] I don’t think this article is the place to debate DEP’s delineation about whether that is a tributary. Again there is a process that you have to go through with DEP. They are not adding any regulations.”

Mr. Kahn asked, “If this article does not do anything then why are we having it? If all protections are in place then why do we need it? It is simply not correct that the 150’ zone applies to our bogs. There was a Decision under they bylaw by the ZBA that determined that our bog is not a tributary. So the non-disturbance zone will not be applied to the bog. This map, regardless of what happens in the future, will now be the zoning map of the town.”

Mr. Mark Dickinson, 8 Bassin Lane, said, “I have been following this matter for some time. I have no personal interest in this other than the bog owner is a friend of mine and I am in real estate field. I have some experience with dealing with DEP and that is why I have some questions about the whole process. [Mr. Dickinson elaborated on his past experience working with DEP.] My experience in dealing with DEP is that they don’t field verify anything. You field verify for them. DEP is terribly under staffed and they rely on third parties both for municipalities and private contractors to do their certification work for them. They do require Registered Professional Engineers to do the certification. They just don’t take anybody’s say so. My question to the FHBWI is – what was the process of the certification? Over and over again I have heard that this is a map created by DEP but I don’t believe it was a map was created by DEP. It may have been rubber stamped by DEP, but I think it was created by these folks.”

Mrs. Morrissey replied, “First of all these article are being presented by the town’s Water Study Committee which is appointed by the Board of Selectmen who are our Water Commissioners. There are five members on the Committee and you can find out who they are yourself. [Mrs. Morrissey read aloud sections of a letter regarding a DEP inspection of the cranberry bog diversion structure. See file.] So this should not be a discussion about that tributary. I take serious offense that people are implying that that is not a map created by DEP and that we created the map.”

Mrs. M. Dickinson, 8 Bassin Lane, said, “I don’t understand why if this map is accurate and it was done by DEP why we need that one.” Mrs. Morrissey replied, “What we did was we changed the Water Resource Protection District. DEP does not establish the Water Resource Protection District, the town does. We have actually taken some areas out of the Water Resource Protection District and then we bumped them out to cover the ends of the tributaries. The Water Resource Protection District did not cover the ends of Old Oaken Bucket Pond. DEP did the Zone C delineation. We had to do a new map to change our Water Resource Protection District to include those areas and to take out an area in the West End.”

Mr. Van Lenten said, “To clarify that - Zone C is that solid red line and that is the delineation of the watershed. That is a DEP delineation. It has been directly transposed to the Water Resource Protection District. The Zone 2 areas shown on that map have also been transposed directly to the Water Resource Protection District.”

Mr. Bjorklund said, “I want to make a point. This actually does not have to do with the bog. It has to do with the accuracy of the map itself. I happen to own a piece of property off Summer Street near the Norwell/Scituate line which is not in an A-zone. The map that is up in the wall over here actually indicates that I have a perennial stream on that map that goes across my property. I don’t have a Zone A on my property. I do have a perennial stream indicated on that map because when B. Bouch of DEP went out with these people it happened to be a day that the sump pump was on. Because water was flowing and they saw the water it became a perennial stream. When I talked to DEP today for an hour on the phone - he indicated to me that it was a simple solution. All you have to come to me and show me that you have a superceding Order from DEP that verifies that it is an intermittent stream and not a perennial stream. They will change it as soon as I send them a superceding Orders of Conditions. The problem is that if the town approves a map that has incorrect information on it – while it may not be a problem for me but if there is a 150’ non-disturbance area around the bog it will be. DEP has the ability to add a tributary if they want to add a tributary and DEP can also remove a tributary if they can prove it is not a tributary . Once this map is approved showing that 150’ around that bog you would have to go back to Town Meeting to correct the map. DEP cannot do it because it will be part of the Town of Scituate’s zoning bylaw. That is the wrong way to do zoning in this town. They should find out where the areas are accurately and have DEP agree to them with the property owners being able to have their own representatives and sit down with DEP. Bruce (DEP) told me that he would gladly meet with anyone at any time and talk about what was being added to this plan. I would suggest that the Planning Board invite him down and have them verify the areas before sending it to Town Meeting.”

Mr. Dickinson said, “I never got an answer to my question about the process. Throughout the presentation and all their literature these maps are being stated as DEP created maps. My question is – who drew the lines and who established the actual lines? I just want a simple answer – who drew the lines?” Mrs. Morrissey replied, “Those lines were drawn by DEP.” Mr. Dickerson replied, “I find it very hard to believe. Their own statements say they did the mapping. I have no doubt that Bruce Bouch came out and did some inspections. He is a hydro-geologist. He is not a civil engineer or a land surveyor who could draw the lines and determine exactly where it was. That is the normal kind of accountability for a huge taking of land off development roles of a community. I think the process is terribly flawed.”

Ms. Harbottle said, “I was concerned about some of these issues. Because I had concerns I contacted DEP and spoke with Bruce Bouch and what he told me was that irregardless of who originally drew what lines that DEP had given the map their blessing. The other thing that I wanted to say is that Steve has a point which is that if you have a General Bylaw it would be much easier to amend the map. That was brought out by the Atty. General.”

Mrs. K. Van Lenten said, “I would like to give you some history on this. This is a project that was initiated long before there were any plans that we were ever aware of that Popes bog would be developed. We gathered a lot of information. The project that we did was meant to be a gift to the town. It was meant for board members so they would have a conceptual idea of where things were in the watershed. Obviously with individual properties we did not have a wetlands expert come out. We may not know exactly where everything is but at least this gives you a guideline to follow. It has nothing to do with the litigation. We started this eight years ago.”

Mr. G. VanWart, FHBWI, said, “I have been associated with this group for five years and I have learned a great deal. They have dedicated their time, many, many hours, going through the back land of Scituate – going through poison ivy, briars trying to find out where these tributaries are, inventorying them, taking pictures of them, monitoring them, and trying to understand what our watershed is all about. They are trying to protect our water supply. We have a lot of developments going on and it is time we understood what our water resource is. This presentation was one of the finest I have ever seen. I have been working in this field for a long time. It is about time we got on track This program should move forward for the future of this town.”

Mr. Limbacher said, “I think you will find that this board does not disagree with any of that, but it is incumbent upon this board to insure that the process was done right.”

Mr. Jeff DeLisi, Country Way, “ I don’t think this map should be taken lightly. It says right on the face of it that it may contain errors or omissions. All these properties along these so-called tributaries will be affected as a result of the definition of a tributary and to the reference of this map here. I have more problems with the definition of tributary. [Mr. DeLisi read aloud the last line of the proposed definition of tributary.] That indicates to me that anyone can come in and determine there is a tributary in my back yard – a tributary that is not even on this map. To me that is a violation of due process. The way I look at it – you have to go to Town Meeting and get a two-thirds vote to determine what the boundaries of these tributaries are and then turn around outside of Town Meeting and create rolling boundaries - to me that is a violation of due process.”

Mr. Steve Mooney, 149 Old Oaken Bucket Road, said, “I am the owner of the cranberry bogs and I want to talk about the map. That map is incorrect. The lines around the cranberry bog change yearly. Whoever put those lines on that – they are not there now. If this person walked my cranberry bogs and drew lines he drew the wrong lines because some of those lines are incorrect. The diversion ditch was vandalized and some water got into the Pond. I cannot believe that someone did not get arrested for that. I mentioned this to an FBI agent and he said that tampering with a municipal water supply was a federal offense. That diversion ditch was designed to take my water away from the town’s drinking water. That is supposed to be maintained by the town. If someone looked at that damaged diversion ditch – this is the wrong map. It must be corrected.”

Mrs. Bernice Brown, Town Clerk, said, “One question relating to the tributary - did we vote in word tributary at the 2004 Annual Town Meeting? Did we have a map that showed tributaries? So tributaries was voted in sight unseen and there was no definition.”

Mr. Dickerson said, “I don’t think that Mr. Van Lenten indicated where he lives.

Everyone else has had to say where they live. He lives right across from the cranberry bog. I want to make sure it is on the record. The suit that was brought last year against the Building Inspector and the ZBA found in favor of the Building Inspector - interesting enough was not filed by the FHBWI who is supposed to be the leader in protecting the water. It was filed by Mr. & Mrs. Van Lenten. That speaks a little bit to the credibility of the cause here. I can commend FHBWI for the wonderful job they have done – public service – they should be commended, but I think that there are other issues here. The destruction of the diversionary ditch/structure last year pretty much went unnoticed. The water course that was previously flowing to the diversion ditch into the North River so it would not be a tributary now allows that water to flow into Tack Factory Pond ergo creating a possible tributary. I would like to point out that in the FHBWI January 14, 2005 web site which has since been detracted and no longer on the web site - [Mr. Dickerson read portions of what had been on the web site.] this actually applauded the destruction of the diversionary structure. FHBWI web site applauded the destruction of this diversionary structure and I think that is terrible.”

Mr. Scott Roberts, Water Study Committee, said, “I take exception to the thought that we were trying to advance Lance Van Lenten’s cause.” Mr. Limbacher said, “Nobody is suggesting that. It is 11:15 P.M. I will ask you to wrap up your presentation. Then I will make a few comments.”

Mrs. Morrissey said, “Again there should be discussion about whether they should be in the General or Zoning Bylaws. I think there should be discussion about that. I would also like to point out that when DEP creates maps in addition to visiting the field they use aerial photography, topographical maps, etc. etc. I also want to reiterate and clarify what Mr. Roberts just said – the Water Study Committee is composed of five people. I am the Chair and I am a member of the FHBWI as is Mr. Van Lenten. The other members are Gene Babbin (Water Div. Supt.), Anthony Antoniello (DPW Director), Lance Van Lenten and Scott Roberts who spent many years on the Advisory Committee. It was a unanimous vote by the Scituate Water Study Committee to bring these articles forward. I also want to point out that repeatedly in letters from DEP they talk about base flow and groundwater flow in tributaries everywhere not just in Scituate. Thank you.”

Mr. Van Lenten said, “As I resident I am proposing a citizens article. The citizens definition refers to same data plus it refers to the DEP maps.”

Mr. Limbacher said, “Let me tell you where I think we are. There seems to be a lot of different targets that everyone is talking about. There is one issue before this Board and in some shape it will be going to Town Meeting. We need to make sure that we are discussing is this bylaw and not a lot of other things. The protection of the water supply is important but it must be done right, done legally, and that we have something that will be enforceable. Let me summarize the points: one is that there is a pretty significant question as to where this lies – is it a Zoning Bylaw or a General Bylaw? The focal point of that happens to be DEP and DEP seems to be wavering as to where it belongs. That needs to be addressed formally. Two – we need to address Adam Kahn’s points to make sure that we are creating a bylaw that we really need. Are the protections there already or not? I would like to get some input from ConCom. There are different groups that are involved. Obviously the enforcement that falls under zoning – Neil has provided a good memo. The next one is – looking at selective questions from the Board of Health would be worthwhile. We need to understand what ConCom’s issues are. We should talk to them. One - it is incumbent upon you as proponents of the articles to make a determination , and we will support it, of where it should be in the best interest of the town. Two – clarify whether we are creating a radical restriction; are we replicating something that already exists. Third - is what is being proposed technically incorrect? To the effect that you fail on the third it effects the others. There is a whole issue about the sluice way – how and when it was destroyed. It is an interesting question but it is beyond the scope that we are looking at here. I think that is what needs to be done.”

Mr. Fenton said, “Can I ask - placing it in the General versus the Zoning Bylaw allows for modification of the map – an easier modification?” Ms. Harbottle replied, “Yes.” Mr. Fenton continued, “I just want to lay that out. I would ask that you prepare thoughts on that for next time.”

Mr. Limbacher said, “One last piece – if DEP has a definition of tributary why do I need to put it in my regs? I need to understand that. Now I will look for a Motion to continue the Public Hearing on all the articles on the Warrant.”

MOTION: Mr. Fenton Moved to continue the Public Hearing on all the zoning articles

which are on the Warrant for the March 2006 Annual Town Meeting to Jan. 12, 2006 at 7:30 P.M. Mr. Walter Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

FORM A PLAN 429 COUNTRY WAY. OWNER/APPLICANT WILLIAM MATTERN

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 429 Country Way. Plan prepared by Ross Engineering Company for Owner/Applicant William R. Mattern. Plan dated December 19, 2005. Motion Seconded by Mr. Walter and the vote on the Motion was a unanimous vote in favor of the Motion.

FORM A 259 FIRST PARISH ROAD: The Board signed the plan. It was noted that it was not necessary to put this on the Agenda because the Board had previously signed a similar plan for this property. The purpose of the plan before the Board this evening was a Land Court plan for the same property.

MOTION TO ADJOURN: Motion duly Moved, Seconded, and voted unanimously to adjourn at 11:20 P.M.

Respectfully submitted,

Merrilyn O’Brien, Secretary

Mary Patricia Brennan, Clerk

Date Approved