MINUTES

OCTOBER 12, 2006

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

Others Present: Ms. Harbottle, Town Planner; Mr. M. O’Neil and members of the Doctor’s Hill Assoc.; Mr. D. Aaberg; Mrs. P. Butler, Housing Authority; Mr. S. Brigham, Boy Scout; Mr. M. McGowan and Mr. H. Stokes of the DRC; Mrs. D. Close;

Atty. Hang Nina Nguyen, Phuong Tran, Minh Huynh and Tuan Nguyen; Mr. Cooper of National Grid

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

ACCEPTANCE OF AGENDA: Mr. Limbacher Moved to accept the Agenda as printed. Mr. Walter Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

Old Business, New Business, Correspondence, Administrative Items

Flexible Open Space Development (Harrington) Rte. 3A: In accordance with Planning Board policy Mr. Fenton disclosed that he had an incidental conversation with Atty. Ohrenberger regarding the Harrington Flexible Open Space Development plans, particularly transportation mitigation. Mr. Fenton reported that he had informed Atty. Ohrenberger that he would, at the next Planning Board meeting, inform the Board about the conversation and Atty. Ohrenberger said he understood. Mr. Fenton reported that Atty. Ohrenberger had asked him if he had any ideas that he could pass on to Mr. Harrington.

Ms. Harbottle suggested that this item could be placed on a future agenda for discussion. Mr. Limbacher said that it should be put on an agenda when the abutters are present.

Meeting Agendas: Mrs. Chisholm asked that the meeting scheduled not be changed unless there was a real emergency. She said that the November scheduled was changed around and she can’t not be present at the November 14th. Mr. Fenton explained that the November schedule was changed due to Thanksgiving week and Tuesday, Nov. 14th was chosen so that there would not be too much time between meetings. The Tuesday, Nov. 21st was changed to Thursday, Nov. 30th. Mrs. Chisholm said she may put her concerns in writing.

DOCTOR’S HILL DEVELOPMENT: REVIEW CORRESPONDENCE/DISCUSS RESOLUTION OF OUTSTANDING ITEMS

Mr. Michael O’Neil, Developer of Doctor’s Hill, and some members of the Homeowner’s Association were present for this discussion.

Mr. Fenton said, “We have discussed this in great detail and at length. Essentially there are two outstanding issues - looping the water main and the issue about the sidewalk which is not there but is on the drawings. We got a very thoughtful letter from Dr. Pozatek. (he is not present, but his wife is). If I may I will quickly summarize the issues. The water main has not been looped and there is an issue around an easement across the property that would be required to do the original design and that is not available. The sidewalks are on the original drawings and they were not completed and at one point there was a discussion about having an agreement with the Homeowner’s Association that there would be street lights in lieu of sidewalks. Those are the two things. I would like to ask if there is someone from the Homeowner’s Association that could do sort of a one minute summary of your position (anything new or different) because we have really talked about this exhaustively. Mr. O’Neil if you would like to comment from your perspective with anything new or a brief summation.”

Mr. Rick Ferguson, 37 Doctor’s Hill Drive, said, “I am the President of the Doctor’s Hill Condominium Association. At this point in time we have no new position. We appreciate having a few minutes here at the Planning Board meeting. We are still in discussion with Doctor’s Hill Corp. about the sidewalk – monetary exchange for the sidewalk.”

Mr. Fenton said, “Just to make it clear for this Board, your position is that you want that sidewalk or you want some cash equivalent.” Mr. Ferguson said, “Yes, that is correct - have the sidewalk or something in lieu of the sidewalk.”

Mr. O’Neil said, “I will address the sidewalk issue first. In December of 2004 we all appeared before the Planning Board (some of you were not here at that time). One of the things that the Homeowner’s Assoc. and the developer agreed on pretty much from day one is that there would not be a sidewalk and in lieu of that the developer would pay the Homeowner’s Assoc. a sum of money which could be utilized for street scaping or street lights. That amount was $10,000. So we are really down to one issue at this point in terms of what is going on. By way of background, the DPW’s consultant responsible for infrastructure has signed off on all of the infrastructure. The issue is and it has been for over a year the interpretation of Paragraph 35 of the Special Permit and what does it mean. It is the position of the developer that the developer has done everything that is required under Paragraph 35.”

Mr. O’Neil provided the members with a copy of the wording in Paragraph 35. Mr. Fenton explained the wording to the members who were not here when the Special Permit was granted. He said that essentially the DPW wanted to have the water main looped through abutting property but there has been a problem with getting the necessary easement to do that.

Mr. O’Neil said, “It comes down to – who is going to make a decision on what Paragraph 35 means. The Planning Board is reluctant up to this point to make a decision that the developer is in compliance. The language is vague. After our last meeting we had not intended to come back to the Board, we were going to file for a Petition for Declaratory Judgment. That has been all drafted and ready to go but we spoke with Homeowner’s Association to see if we could get some resolution. I think they want a resolution at this point too. The sidewalk is pretty much a non issue. It is just a question of reading it and deciding what it means.”

Mr. Fenton said, “The figure of $10,000 is that your current understanding?” Mr. Ferguson replied, “On October 4th -- if we were not having the water looped (and we can support the position that they don’t have to loop it) there would be room to negotiate. That was on October 4th. At one time we did have some agreement but that is now null and void.”

Mr. Fenton said, “Mr. O’Neil accurately represented that at that time (September ’04). The majority of the Board supported the notion of cash or other mitigation in lieu of sidewalk. I would like to hear from the Board. In a perfect world we would come up with two things. We would make a decision on the sidewalk question (take a vote on that). We would have to essentially change a drawing.”

Mr. Frank Sheehan, 24 Doctor’s Hill Dr., said, “On the sidewalk issue we have not seen any final plans on the sidewalk. That is the number one problem. We think you should ask for plans. Also, there is no deal. Also, go up and take a good look at the development. Either by mistake or by design they have put utilities in the way, they changed the slope of the land, they changed the gradation. You would need steps in front of one driveway. You can’t really put sidewalks there. That is why some of the people did not want the sidewalks. It is not that we didn’t want sidewalks. You really can’t put them in now because of the way the place was developed. They made these field changes and then they wanted to file those field changes. They did it arbitrarily and before hand and then filed. So you have a situation up there that does not allow for sidewalks unless you are willing to construct stairways and cut through driveways.”

Mr. Fenton said, “Most of the Board has gone out and taken a look at the situation.”

Mr. Limbacher said, “The homeowners, in my opinion, have been a lot more patient than I would be. The only way, in my opinion, that this can be changed regarding the looping of the water and take anything in lieu of those sidewalks is through a modification of the plan. That is what needs to be done. I would look for the developer to come in and request a modification of the subdivision and part of that modification should be what arrangement can be worked out with the Homeowner’s Association e.g. if they want trees, lights. Whatever they want should be on the table to negotiate. We can’t just modify the subdivision based on an agreement that may or may not exist. The only way that this can be resolved is to come back up and modify the subdivision. You can do that for both things – looping of water and the sidewalks. Short of doing that a year from now we will be talking about the same thing. The people who own these things are under temporary occupancy. They could not sell them if they wanted to. They are trapped because of the fact that the subdivision was not built the way they expected it to be and it was not built the way this Board approved it.”

Mr. Walter and Mr. Fagan both indicated that he agreed with Mr. Limbacher.

Mrs. Brennan asked about the procedure needed for the modification of the subdivision.

Ms. Harbottle said, “The Board can initiate a modification or the developer can initiate it. It seems that the developer does not want to do a modification. I think you told him that last February. I sent Minutes around to everybody.” Mr. Limbacher added, “If he doesn’t do it then he has $95,000 sitting on the table that he is not going to see.”

Ms. Harbottle spoke about Paragraph 35 and suggested that it would be helpful if the Board would clarify, once and for all, their position on this Condition. She also said it would be helpful if the Board would clarify once and for if they want the sidewalk built.

Mrs. Brennan raised concerns about the fact that often developers do not build a subdivision in accordance with the approved plans and then the Board often agrees to let developers change drawings in accordance with what they did. She asked, “Why do we let developers go out and do whatever they want?”

Ms. Harbottle said that Mr. O’Neil has indicated that he is ready to file suit in order to get the surety returned to him. Mr. Limbacher said, “The only thing he could possibly win in a suit is the water loop because that is the question that is there. That is one issue. He has not built it according to the approved plans, so going to court will not solve all his problems. The only thing it may address is the ambiguity of the language about looping the water line. It does not resolve the issue of the sidewalks.”

Mr. Fenton asked, “Is there another path – just so I am clear what the options are? There is money. That is what surety is for. Can we take the money and have that work done? We could find out what it will cost to build the sidewalk. Is it within our purview to take the money to build the sidewalk?” Ms. Harbottle replied, “Yes.”

Mr. Fagan said, “But the Homeowners have indicated that they do not want the sidewalk.”

Mrs. Brennan said, “Shouldn’t we be asking the Homeowner’s Assoc. what they would like and what would they do with that money? Shouldn’t we take the money? As Bill said – they have temporary occupancy permits. That is absurd.”

Mrs. Chisholm said, “I remember one meeting where they requested lighting in lieu of sidewalks. That never happened. We are going back and forth every time they come in. We have to make a decision, but we need to know what they want. I don’t know how you get there.”

Mr. Limbacher said, “The direction that can be provided - you come in with a request for a modification to the subdivision that eliminates the sidewalk. In lieu of the elimination of the sidewalk then this, this, and this will happen. It should be agreed to by the Homeowner’s Assoc. and the developer so when they come in there is an agreement as to what is acceptable to both parties. Collectively they decide what they want and they bring in the modification. That leaves the looping and we can decide if that is critical or not. You could get an engineering argument that says it is impossible to loop the water line. The issue is, I think, is the sidewalk and how do I resolve that. Pat’s question is good – how did we get there. Surety is for certain things.”

Mr. Fenton asked, “Can we use surety to bring what is on the ground up to what is on the plan? I think that is exactly what surety is for. I like sidewalks. To some degree I think the homeowners have been put in an unfortunate situation. I have a problem with them getting backed into that corner.”

Mr. Fenton asked Mr. O’Neil, “You have heard the tenor. Are you interested in applying for a subdivision modification?” Mr. O’Neil replied, “Some things I have heard are not correct. Opening up the hearing requires action between the developer and you. We have had a year and a half since the transition committee (Homeowner’s Assoc.) was set up and we can’t seem to get over this hurdle of the interpretation of Paragraph 35. I would suggest that it you want us to come to some consensus on the sidewalk issue and the rest of the issues – I don’t know if it is proper protocol for the Planning Board but I would suggest that the Chairman or someone else act as a liaison or arbitrator between the homeowners and the developer and come up with a consensus so when we come in to the Planning Board there is agreement.. There are three parties here. I would be amenable to doing something like that. It would have to be all ironed out and then we would file. Another thing that came up – as far as the Building Inspector is concerned he will issue an Occupancy Permit if anyone asks for one. In fact, there has been a resale of one of the units. So you can throw that issue out. The sidewalk is shown on the drawings as part of the Special Permit. It is on one side and is about 600 feet. If you want the sidewalk we will do it. It is no big deal. You, as a Board, have the power to interpret Paragraph 35. There is no where in the plan and there is no where in the Special Permit that says that the Doctor’s Hill Corporation has to loop the water main. Where that comes from I don’t know. I would suggest that the Board make a Motion to set up a liaison to help work out the situation.”

Mr. Fenton asked, “And if we did that would there be a date certain to take that action?”

Ms. Harbottle replied, “The Planning Board can initiate a modification. If you don’t want the sidewalks built and you don’t want the water main looped you don’t have to get involved and be a negotiator here. The alternative is – if you don’t want the sidewalk or you don’t care – the issue between the lights and the sidewalks or some other thing and the sidewalks is really between the developer and the homeowners. The town really doesn’t have to be involved with that” Mr. Fenton asked, “Don’t we have to do something – perhaps a modification?” Ms. Harbottle replied, “You could accept it as a field change but I don’t think you are even ready for that yet. You are not there yet. There is a difference among you about the sidewalk and I am not sure about the water main. You should first clarify those two things and then you can decide how to go about it.”

Mr. Limbacher said, “I am willing to trade off the sidewalks because I recognize the difficulty of putting them in. Would they be nice to have? The answer is yes, but at this point in time we have reached a point where they would be virtually impossible to put in. I think the Homeowner’s Assoc. should get something equivalent. If they are going to lose the sidewalks then they should get something else. I am suggesting that I want to tie this together so that two years from now I am not hearing ‘you said four lights and there are only two lights’. I want everything all clearly defined and spelled out as part of the modification. If you talk to DPW – it may be impossible to loop the water. The only way to possibly loop it is to bring it back through the subdivision and that does not do anybody any good because there are restrictions coming across Rte. 3A. There is a lesson to be learned here for the Planning Board that we did not get what we wanted – perhaps because of the verbage or whatever. I am not sure of that. I can understand Mr. O’Neil’s position that from a legal standpoint the language is hard to enforce and I am willing to walk away from that.”

Mrs. Chisholm asked, “Why wasn’t the sidewalk built?” Mr. Fenton replied, “That is a good question. I will ask the homeowners. Are you (Homeowner’s Assoc.) universally of a mind – did you take a majority vote or is there a difference of opinion within the group – would you like to have sidewalks? Are you all of a notion that it is impossible to build the sidewalks? Could we get a sense of what you want?”

Mr. Ferguson replied, “I think we would negotiate with Doctor’s Hill Corp. Yes, we want compensation for that. We need a timeframe. I don’t agree that the sidewalk is 600 feet and that depends on where it has to go. Also, it has to be 5 ft. and not 4 ft. I think we could have good faith negotiation.”

Mr. Joe Bilota, 22 Doctor’s Hill Drive, said, “I am concerned that we will go back and try to negotiate with Doctor’s Hill and we have done that. We should put a time frame on this as was mentioned. If given that time frame and it is not done, I would like to submit what we think is a fair proposal and Doctor’s Hill Corp. can submit what they think is a fair proposal. We won’t end up with a fair judgment or agreement because that is not what Doctor’s Hill Corp. is about. We should submit what we think is fair to the Board and let the Board make the call.”

Mr. Harold Tuttle, 15 Doctor’s Hill Drive, said, “First - we do not have As Built drawings. The Town of Scituate does not have As Built drawings and the Health Agent will not accept our septic system because she does not have drawings. Paul Mirabito said that all his drawings have been subpoenaed. That is a serious situation.”

Mr. F. Sheehan said, “If we can’t come to an agreement then we should ask the Board to require Doctor’s Hill Corp. to submit a set of plans showing how they will install those sidewalks (because of all the utilities that are there now).” Mr. Fenton said, “So you are saying that the original drawings are not clear because there is stuff there now that wasn’t there before.” Mr. Sheehan agreed.

Mr. O’Neil said, “In response to the question about why the sidewalks were not built -the sidewalks were not going to go in until the final road construction was done which was last year and part was with the location. The transition committee put it out to a ballot vote and the bottom line was that there was a 30 to 1 vote (out of 32 households) against the sidewalk. There is a preliminary As Built that is 95% done and the DPW has had that preliminary As Built for over eight months. That is available for anyone who wants to see it. The Board of Health has that same plan. We have been round and round on this thing with the Board. We need a liaison from the Board because if we reach an agreement it will have to be in the form of a motion that you would adopt. Without having Planning Board input from either the Chairman or a liaison it will not do us any good if we don’t have a motion that changes the language of Paragraph 35 and addresses the sidewalk issue. If it is not in the form of a motion that is adopted at a real meeting we are just spinning our wheels.”

Mr. Limbacher said, “I could be the liaison. My expectations are: they should sit down and meet and come up with an agreement on the sidewalks. If they can’t do that then we can take the money and do what we want.” Mr. Fenton said, “That is what surety is for.”

Mrs. Brennan said, “I think it would be appropriate at this point to hire a professional arbitrator rather than one of us. I don’t think that is our job.” Mrs. Chisholm said, “I don’t think one of us should be liaison.” Mr. Fagan and Mr. Walter agreed that the Board should not act as an arbitrator.

Mrs. Chisholm said, “I still think there should be a sidewalk. It was part of the Special Permit “ Mr. Walter said, “The modification will bring things together. I had heard that there was some type of an agreement that was pulled off the table.”

Ms. Harbottle asked, “Do you want to give Mr. O’Neil a time line?” Mr. Fenton replied, “Yes, and I think we have direction. I will ask the Board for a consensus. I feel that the sidewalks should be built as shown on the drawings. I am with Donna on that. I am not in favor of them not building to the approved plan and then coming back later and ask for a change for something that they did not do. I think that is problematic from a precedent point of view. To this day I am still working on getting a sidewalk down Rte. 3A. The sidewalk there would be part of something that is a larger goal of this Board, and has been. So, I suggest that we offer some direction around a deadline and our sentiment as a Board. If they bring in something that we didn’t like that is problematic. There is no logic in saying – go negotiate and we promise to agree with whatever you come up with unless we are prepared to do that. There is a risk if we don’t give clear direction now. Agreed?”

Mr. O’Neil said, “We basically know where we are going with the sidewalks but we need some kind of consensus about where we are going with Paragraph 35. Do we agree on changing that language to eliminate the need for looping the water?”

Ms. Harbottle said, “I think there are some legal issues about the surety.”

Mr. Fenton said, “I would like the Board to vote on two things to clear up what our direction is. First – are we still expecting a subdivision modification? [Mr. Limbacher, Mr. Fagan and Mr. Walter both said that there should be a modification.] Mr. Fenton said, “So there are three members that want a modification.”

Mrs. Brennan said, “I am nervous about setting precedent.” Mr. Fenton said, “To that end the two votes would be – are we amenable to alternative improvements on the site if there is an agreement between the two parties? I have three people saying I want a subdivision modification. I don’t want to send them away and leave these homeowners coming back again. Do we tell them to include the sidewalk or not?” Mr. Limbacher replied, “Look at a sidewalk or something in lieu of a sidewalk. To the extent that the sidewalk is built different than what is on the plans it should be shown on the modification.”

Mr. Walter said, “I agreed with the sidewalk once but I also know that it is a dead-end street.”

Mr. Fenton said, “I have a problem personally - you will not get my vote if there is no sidewalk. I think it should have one. That is only one vote. You can still get three. I think a sidewalk – either the one on the plan or a modified one should be built by the developer and I think they have to come to an agreement on what is done rather than what was originally there. That would be my direction to go.”

Mr. Limbacher asked, “Suppose the homeowners don’t want a sidewalk? You can end up with a sidewalk that the only one who wants it is Mark.” Mrs. Chisholm said, “It was on the original plan so it should have been done since the beginning. So if they modify it we will be allowing a change to the Special Permit.”

Mr. Fagan asked, “So what if they negotiate and they say they they don’t want the sidewalk – they both come to that agreement?” Mr. Fenton asked, “Would you be willing to vote for that?” Mr. Walter, Mr. Limbacher and Mr. Fagan both indicated that if there was agreement between the parties they could vote for no sidewalk.

Mr. Fenton asked, “Do we feel that as part of the agreement you would also be comfortable with the interpretation of Paragraph 35. Do we agree that the applicant has done what they are required to do by bringing the water line to the end of the property? That would be the second step in our accepting the modification.” Mr. Walter said, “DPW has already signed off.” Ms. Harbottle added, “DPW really wanted the loop.”

Mr. Limbacher added, “But it is impossible to do.” Mr. Fenton said, “It gives you more protection.” Ms. Harbottle said, “It is better but not absolutely necessary.”

Mr. Fenton said, “I have tried to come up with an answer. Perhaps the cost could be part of the negotiation. That gives the homeowners a little bit more to play with. Are we okay with that interpretation of Paragraph 35? They have brought it to the property line. It could be based on the modification being submitted.” Mr. Limbacher said, “I will not vote it until I see the modification. Ms. Harbottle said, “You could vote it as a modification. You should take a vote.”

Mr. Fenton said, “I would accept a Motion that would suggest that pending submission of an appropriate subdivision modification, this Board would accept an interpretation of Condition 35 that recognizes that bringing the water line to the property line would be sufficient.” Mr. Limbacher added, “As part of the modification we should say that looping the water is not necessarily. I will do it with a modification. I would not do that now. I want to see the modification.”

Mr. Fenton called for a consensus of the Board regarding the need for a modification and that the members agreed with the interpretation of Paragraph 35 that bringing the water line to the property line is sufficient. All the members indicated they agreed by saying aye.

Mr. Fenton said, “So there is consensus. We want a thoughtful dialogue between the two parties. We will not take an arbitrator’s role. So what is the time frame? When do you want them to come back?” After a discussion there was an agreement that the parties would report back to the Planning Board by November 30th. Mr. Fenton said, “So procedurally they will come back by November 30th with an agreement and then we will advertise the public hearing for the modification.”

Ms. Harbottle asked what the Board wanted to do about the surety issue. Mr. Limbacher replied, “If there is no further construction needed then we will address the surety.”

Ms. Harbottle asked, “Do you want cost estimates?” Ms. Harbottle said that the cost estimates should be estimates that everyone agrees with. Mr. O’Neil concurred.

Mr. O’Neil said that cost estimates were in the Planning Board files. Ms. Harbottle asked Mr. O’Neil, “Does this mean that you are not filing the suit to release the surety?” Mr. O’Neil replied, “Not at this point.”

FORM A PLAN ELM PARK. OWNER/APPLICANT: JOHN & EILEEN NORRIS

Mr. Doug Aaberg, Aaberg Assocs., explained the plan to the Board. He said, “They want to carve off Parcel A to sell it to a neighbor. They will still have enough frontage and area.” Ms. Harbottle agreed that Parcel A was not a buildable lot by itself. There were no further comments or questions.

MOTION: Mr. Limbacher Moved to endorse as Approval Under the Subdivision Control Law not required a plan of land in the Town of Scituate located at 13 Elm Park. Plan prepared by Aaberg Associates for Owner/Applicant: John & Eileen Norris. Plan dated September 25, 2006.

CPA APPLICATION AFFORDABLE HOUSING PLAN: Ms. Pat Butler, Chairman of the Housing Authority was present. Ms. Harbottle said, “The State has a program where towns can do housing plan. If you do enough affordable housing you can a breather off from Ch. 40B developments. We may not hit the magic number every year. The grant is about $15,000. I put together an application for CPA for it. The Housing Authority will sponsor it. We have a housing element in the Master Plan. Mr. Fenton said, “The Planning Board could co-sponsor this. In general we have been banking the housing part of the CPA funds. This would be a good use of the money.”

Ms. Pat Butler said, “Scituate does not have an affordable housing plan. The Housing Authority does not have the money. If we, as a town, have an Affordable Housing Plan we would be one step up. There are so many people in town who can’t afford to live here. We need a plan and we don’t have it. I don’t know if Scituate wants an Affordable Housing Plan but we need to try to do it.”

Mr. Fenton said, “I feel strongly that we should co-sponsor this with the Housing Authority.” The other members indicated that they agreed with Mr. Fenton.

Motion: Mr. Limbacher Moved that the Planning Board vote to co-sponsor, with the Scituate Housing Authority, the grant application for funds from the CPA funds for an Affordable Housing Plan application. Motion Seconded by Mr. Fagan and the vote was a unanimous vote in favor of the Motion.

SCENIC ROAD ACT PUBLIC HEARING CLAPP ROAD

Mr. Sam Brigham, Life Scout, explained that he was working towards his Eagle Scout designation. His project was to create a 3 to 4’ opening in the stone wall along Clapp Road (directly across from the Mt. Hope Improvement Society building and parking lot) to provide a public access trail to the Maxwell Conservation Trust property.

Mr. Fenton said that the Board received photos of the wall. He asked Mr. Brigham what he would do with the stones that are removed from the existing stone wall. Mr. Brigham said that he would use the stones to curve back the opening into the trail.

Mr. Walter suggested that a couple of stones be placed on each side of the opening (up on top) to mark it and make it stand out.

Mrs. Brennan asked if there would be any signage. Mr. Brigham said that inside the wall there will be a kiosk which will explain the trail. He said that he was not sure about the sign but he thought there would likely be a sign.

There was no public comment.

MOTION: Mr. Limbacher Moved to close the Scenic Road Hearing. Mr. Fagan Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

MOTION: Mr. Limbacher Moved to approve the Scenic Road Hearing application in accordance with the plans presented by Sam Brigham, Eagle Scout Candidate. [Removal of a small three to four foot section of stone wall to provide a public access trail to the Maxwell Trust Property on Thomas Clapp Road directly across from the Mount Hope parking area.] Motion Seconded by Mrs. Brennan and the vote was a unanimous vote in favor of the Motion. Mr. Fenton, Mr. Walter, Mr. Limbacher, Mr. Fagan, and Mrs. Brennan voted in favor of the Motion.

PUBLIC HEARING ON ZONING ARTICLES ON WARRANT FOR SPECIAL TOWN MEETING

Revise Zoning Bylaw Sections 940 and 950 re Review of ZBA Applications by Design Review Committee. (Sponsored by the Planning Board)

Design Review Committee (DRC) Chairman, Michael McGowan, was present. See draft language dated October 6, 2006.

Mr. Fenton said, “This changes the language so that the Zoning Board of Appeals (ZBA)

will have the opportunity to take advantage of the DRC during their permitting process. The language has to show up in S940 and S950, right?”

Ms. Harbottle said, “The Advisory Committee did vote to support it but with one change. They wanted S940 (Referrals) to be more mandatory. They wanted S940 and Section 950 to match which would make sense. So it will read the SPGA ‘shall’ refer the permit applications to DRC rather than ‘may’. I think we can still change the Adv. Committee booklet. We did exempt certain Special Permits from DRC review e.g. Flood Plain Special Permits, Common Driveway Special Permits from the whole DRC process. So maybe you really do want to say may and not shall because you may not want everything to go to DRC and the Traffic Rules Committee. You may not want to say shall especially for single family homes where a Special Permit is required from the ZBA – you may not want to send it to DRC.”

Mr. Fenton and Ms. Harbottle explained the various versions of the language of the proposed article. Mr. Fenton said, “We initially said that we may refer Special Permits to the DRC and Traffic Rules. They said since it says ‘shall’ for DPW and Board of Health then why not do it for DRC and Traffic Rules. Now Laura is saying that it would make it more complicated to send everything to DRC.”

Mrs. Brennan said, “But it says ‘if so desired’ – even if it says shall.” Mr. Fenton read aloud the latest language. Mr. Limbacher said, “So everything must go to DRC if you say shall. At first you had the option of sending it to DRC. I prefer that it says may. That would say that every application must go to DRC and Traffic Rules but the DRC is set up not to look at all the Special Permit applications. It should say that to the extent that it is warranted the application can be sent to the DRC.”

Ms. Harbottle said, “Or you could do something different - e.g. for all Special Permit except for single family homes and some special permits.”

Mr. Limbacher said, “I like the original wording. I don’t have a problem with S950.”

Mr. Fenton asked Mr. McGowan for his opinion. Mr. McGowan replied, “It would be good to get design comments as early as possible in the process. I like shall.”

Mr. Walter added, “I think ‘shall’ is fine.”

Ms. Harbottle said, “I think that maybe what we may want to do is to put in another sentence - ‘except for a single family house and some special permits’. I think we can make it a little more explicit. You would have to add one more sentence.”

Mr. Fenton said, “So it will say - ‘shall refer except for…….’ That should keep the Advisory Committee happy. Laura, will you write that sentence?”

MOTION: Mrs. Brennan Moved to bring this Article, as modified, to the Special Town Meeting. Mr. Fagan Seconded the Motion.

Discussion: Mr. Joe Joyce, 39 Ocean Avenue, referred to the language in S950 (the last sentence) and he suggested that the same language could be used in S940. He also suggested that the language should address non-conforming houses because a lot of the houses in town are non-conforming. Ms. Harbottle explained that some of the Special Permits were automatically sent to all Boards e.g. Common Driveway Special Permits.

Mr. Fenton said that the language about sending Special Permits to various boards should remain as is and not be removed. Ms. Harbottle agreed.

Vote: The vote on the Motion was a unanimous vote in favor of the Motion. Mr. Fenton, Mr. Walter, Mr. Limbacher, Mr. Fagan, and Mrs. Brennan voted on the Motion.

Mr. Fenton said that the Board would bring this article to the Special Town Meeting and recommend support of the article by Town Meeting.

Add New Section 790.4 re. Special Permit for Wireless Antennas (Sponsored by the Planning Board )

See Handout for proposed language. Mr. Michael Cooper from National Grid Wireless was present. Mr. Fenton reported that the Advisory Committee (Adv. Comm.) had some questions about the income from the wireless antennas.

Ms. Harbottle explained, “After the Adv. Comm. meeting I contacted Nantucket. In Nantucket they use the fact that the carrier has to have access over the street to put in the antennas. They set up a lease situation.” Mr. Limbacher responded, “So you are saying they put it on the pole and lease the access over the right of way.” Ms. Harbottle said, “The Adv. Comm. is interested in finances. They try to maximize the value for the town from all kinds of different sources. They did not take a vote on this article because they weren’t ready. They wanted to understand the financial implications first.”

Mr. Cooper, National Grid Wireless, said, “I am not familiar with the Nantucket agreement. I know there is a lease agreement. Legally you don’t need to lease public ways to everybody. We have an agreement with the pole owners for a nominal fee of $10.00 per year. I will research that and I will be prepared to speak to it at the next Advisory Comm. meeting. Just very briefly – our project is just to put a box and an antennae on very selective distribution poles that are already there in lieu of a tall tower. Your current zoning never contemplated this type of technology. So we need to tweak the zoning to say that it is okay.”

Mr. Limbacher explained how the town obtained fees from carriers that were on the wireless towers e.g. the one behind the Police Station.

Mr. Fenton asked, “Is there language about fees in the zoning for the existing cell towers? Apparently it has not been explicit in our zoning, so similarly it would strike me that we don’t need it on this one. We could talk about this when we are granting the Special Permit if we want to.” Ms. Harbottle said, “I think that the money issue will be tied to the Adv. Comm. recommendations on the article.”

In response from a question Mr. Cooper explained, “The box has four slots in it and it supports four carriers and we lease them capacity on the network.”

Mr. Fenton asked, “Does the Board feel that this language stands up? Mr. Cooper can talk to the Adv. Comm. about the financial implications. We, as a Board, will be very vigilant about the finances just as we were with the cell towers.” Ms. Harbottle said, “As a Planning Board you really can’t be vigilant about the finances. I really don’t think it should be part of the language in the bylaw.”

Mr. Fenton asked, “Would the network of pole mounted antennas obsolete the cell tower and therefore we would suddenly lose the income from the cell tower? That may be where the Adv. Comm. is coming from.” Mr. Limbacher said, “The answer is that it is under contract.” Mr. Fenton said, “There is control through the Special Permit. We can always decide not to grant it.”

Mr. Cooper explained, “It is actually complimentary to the existing towers. It will help to fill the gap e.g. down by the waterfront. You still need the towers.”

Mr. Fenton said, “So am I right that we are ready to send this to Town Meeting and to let the Adv. Comm. ask the questions about finances? I will entertain a Motion.”

Motion: Mr. Limbacher Moved to recommend adoption of this article by the Special Town Meeting. Mr. Fagan Seconded the Motion and the vote was a unanimous vote in favor of the Motion. Mr. Fenton, Mr. Walter, Mr. Limbacher, Mr. Fagan, and Mrs. Brennan voted on the Motion.

Zoning Map Change, 5 Old Country Way.

See map ‘Zoning May Change Adoption of 5 Old Country Way to Village Business Overlay District 9/25/2006.

Mr. Fenton said, “Let me summarize two important things. One is that we have a letter from the Water Study Committee which recommends not bringing this, and secondly, the Adv. Comm. had quite a few questions. I am going to admit that I did not have a good understanding of this and that became apparent after the Adv. Comm. meeting. We concluded at our last discussion on this that essentially we were just bringing the map to make it on line with the understanding that this Board had and what we thought the town had when we voted the Village Business Overlay District. We thought that (a) the map represented the triangle as being in the Village Business Overlay District; and (b) that the map was mistaken. Our colored map, the one we all had, did not show that parcel. So then coincidentally the map did not show that parcel as being in the Overlay District. The Adv. Comm. suggested that that was not how it played. They said that even if the triangle was in the Business District we somewhat consciously left it out of the Village Overlay District.”

Ms. Harbottle said, “We were trying to get through a big hefty zoning change and we barely got that through as it was. That triangle was never clearly in the Business District.”

[Mr. Fagan recused himself from this discussion because he lives and works in the Greenbush Business District.]

Mr. Walter said, “I think it should be part of the Overlay District and part of the Business District.”

Mrs. Chisholm asked, “Did we make a mistake?” Ms. Harbottle replied, “No because it was never on the map. I don’t see how anyone would have known that that was in the Business District.” Mrs. Chisholm said, “So there has never been a business there.” Ms. Harbottle replied, “Not that I could see.”

Mrs. Brennan asked, “If it was never on the map why is the attorney stating that it is?”

Ms. Harbottle replied, “In the 1984 Town Meeting records there was an article (Article 25 of the Annual Town Meeting) that put that parcel in the Business District.” Mr. Walter said, “It was always my understanding that it was part of the Business District given our discussions with our consultant. I do not understand why it was not on the map. I thought it was in the Overlay District all along because it was part of the Business District.” Mr. Limbacher said, “That is the same position that I am in. It is my understanding that it was there. Shame on me for not looking at the colors.”

Ms. Harbottle said, “After this came up at the Selectmen’s meeting Pat asked me to go back and research all the meetings when the zoning changes for the Village District in Greenbush was discussed. I did that. I did not get to the last public hearing but in all the other ones it did not come up. We did discuss making changes to a large portion of the Commercial District where it had not been before and people in the area were very upset.”

Mr. Fenton said, “Here is where we are at. It will not be easy to present it as just bringing the map back in order.” Mr. Walter said, “I thought we had a consensus of the Board members that it was just a housekeeping thing.” Mrs. Brennan added, “As I understand it, even if the attorney had not proposed the language, we should be doing this housekeeping thing anyway.” Mr. Fenton said, “There is the 1984 Bylaw but the question is should it or should it not be part of the Overlay. Then you have the comments from the Water Study Comm.” Mr. Walter said, “My comment to that is that the Rivers Protection Act protects it because of that stream.”

Mrs. Chisholm asked, “If it is in the Business District what does that mean?” Ms. Harbottle replied, “They could put in one unit per 10,000 S.F. and they could put in three Accessory Dwellings up above retail.” Mr. Limbacher said, “It ends up that The Rivers Act takes precedent . The tributary takes precedent over any zoning that you overlay. That doesn’t change. The protection is always there. I thought that when we discussed the Overlay District it was for everything in the Business District. I assumed that the triangle was there as part of the Business District. It always amazed me as to how that little piece got into the Business District.”

Mr. Fenton asked, “Do you want to allow the high density there?” Mr. Limbacher replied, “There is the same amount of protection because of the tributary regardless of what zoning I put there.” Mr. Fenton said, “Even if it is in the Business District why would we want to allow the higher density.” Mrs. Chisholm asked, “If the Rivers Protection is going to protect you from doing anything what is the sense of going to Town Meeting with this? This will just confuse people.”

Mr. Fenton asked what could be done on that triangle given current zoning. Ms. Harbottle explained the options.

Mr. Fenton called for public comment. Mrs. Doreen Close pointed out that the existing house is from the 1600’s. She said that the Board may or may not know if a developer wants to do five units there.

Mr. Walter said, “It is in the Business District. It clearly is in the Business District. What Bill and I are saying is that through our deliberations on the Overlay District that we thought that this was part of the Overlay District. I really thought it was a simple housekeeping thing.” Mr. Limbacher added, “So did I. It was presented at Town Meeting that what was in the Business District was in the Overlay District, but what we found was that the Overlay District did not overlay the entire Business District. So it is just housekeeping.”

Mr. Scott Roberts, Water Study Committee, said, “We did a map. We feel very strongly about it. I know that Gene Babin (Water Dept. Supervisor) is very concerned because it feeds the pond where we draw our water. Also, if you take a look at it is almost like a basin. The maps are clear. It has an environmental impact. How can you possible say it is an inadvertent omission? Nothing could be clearer. It is important for our water supply? It is a complicated issue but it boils down to an issue of our water supply.”

Mrs. Brennan asked, “In 1984 Town Meeting voted it into the Business District, is that correct?” Mr. Fagan replied, “It is in the Business District. It was just a typo that it is not on the map.”

Mr. Fenton said, “Just for the record – Chick has recused himself so Donna can vote on this. I am now finding myself disinclined to vote for this – as much as anything because of the water issues. I accept that it is Business but I am not convinced that we have had enough discussion about putting the higher density of the Overlay District there. I once thought that it was in the Overlay District but now that it hasn’t I am cautious about the site. We have strong recommendations from the Water Resources Comm. I am not sure that we should be compelled to do this now. It is perfectly valid for them to ask for it but I am not sure that we need to act on it now. I would be prepared to not support it and to pull this. Frankly, I think it would fit into a nice, larger discussion on some of the rezoning more of that area. Things that are clearly residential could go to residential and things that are clearly business like along the Driftway could go to business. What do you think?”

Mrs. Chisholm said, “The error is 22 years old. Now a developer wants to purchase the land and he wants us to change it. He would be able to do more if it is in the Overlay District. I think it is bad timing and I think it will be a very hard sell on the floor of Town Meeting.”

Mr. Walter said, “It was brought to our attention by someone who happens to be a developer. We took it on our own as our own because we thought it was a housekeeping issue.” Mrs. Chisholm replied, “I believe that if it hadn’t been brought to our attention we would not be talking about it.” Mr. Walter said, “I thought it was simply housekeeping. If there is a perception out there - if someone questions our integrity for doing this then shame on them.”

Mr. Fagan said, “Just because that one developer came in does not mean that that is the only person looking at this. There are other people interested in the property for different reasons that that developer is. Larry and Larry had it all laid out. We voted for it. I am not saying I want it developed. It is right across the street from me.”

Mrs. Brennan said, “I agree with Donna about the way it came up and with Chick that is was a housekeeping issue. The developer could have put in a petitioned article.” Mr. Fagan explained, “It is being sold as a business piece of property. “ Mr. Walter said, “The Board agreed to take it on.”

Mr. Fenton said, “Yes, that night we said it was ours. Enough of us felt it was a housekeeping issues. Part of me thinks it is shifting sands. I don’t think it is as much of a housekeeping now as it was then.” Mr. Limbacher asked Mr. Fenton, “If it did not have environmental concerns would you think the same?” Mr. Fenton replied, “Yes, the idea is that we deliberately left it out. The Planning Board is being represented that way. I am just telling you that that is the representation that is now out there – that we consciously left it out. It is the combination of those things. I would like to have a more thoughtful discussion. There is enough shift in the sands since Mr. Bjorklund brought it here for me to pull back and I add the weight of the Water Study Comm.”

MOTION: Mr. Walter Moved to recommend adoption of the article, as written, by the Special Town Meeting Mr. Limbacher Seconded the Motion.

Discussion: Mr. Walter said, “Just to clarify – to me it is clearly a housekeeping thing. The environmental concerns are very real as is the Rivers Protection Act. You may find that if something is put there it would be better than what is there now.” Mr. Fenton said, “The other thing is that current business zoning allows certain things there anyway. Any other questions from the Board?”

Vote: Mr. Walter, Mr. Limbacher, and Mrs. Brennan voted in favor of the Motion. Mr. Fenton and Mrs. Chisholm voted against the Motion. Mr. Fagan recused himself from acting on the Motion.

[The Board decided to discuss the 9:00 P.M. item on the Agenda and to return to the discussion of the zoning articles after the 9:00 P.M. is concluded.]

SITE PLAN ADMINISTRATIVE REVIEW 14 ALLEN PLACE NAIL SALON/ EXPANSION OF APARTMENT. APPLICANT: PHUONG TRAN

Mr. M. McGowan and Mr. H. Stokes of the DRC were present. It was noted that since five members were present Mrs. Chisholm, the alternate member, would not be voting on this application.

Atty. Hang Nina Nguyen introduced the applicant, Phuong Tran. Also present were Minh Huynh and Tuan Nguyen. Mrs. E. Bourne, an abutter, was present.

Atty. Nguyen explained that the applicant bought the property at 14 Allen Place from Dr. Gordon Price. The applicant presently operates a nail care center on Front Street in property owned by Jack Conway. Mr. Conway plans redevelopment of his Front Street property so he told the applicant that the lease would not be renewed. The applicant plans to move the nail care center to 14 Allen Place in order to continue the business in Scituate that they have run for the last five years.

Atty. Nguyen said that the proposal is to use the first floor as a nail salon and use the second floor as a dwelling for the family. She said that she very recently found out that Dr. Price had an illegal apartment on the second floor. That information should have been revealed during the Purchase & Sale of the property but it was not. To that end the applicant plans on submitting an application for an Accessory Dwelling in the near future. However, the applicant would like to proceed with the review of the Site Plan Administrative Review application presently before the Board.

It was noted that the DRC reviewed the plans on October 10th and the DRC provided the Board with a memo. See file for a copy of this memo.

Atty. Nguyen spoke about the Asian cultural and the need for a proper flow of energy in order to make the business successful (feng shui). She explained that there is a negativity if there are a lot of corners with the dormers. She emphasized that the applicant is willing to work with the DRC but she emphasized the need for the cultural aspects to be considered as well. Atty. Nguyen said there was an agreement that brick veneer would not be used. There was an agreement reached that, relative to the windows, grids would be used instead of having clear plate glass windows. Atty. Nguyen asked for some guidance as to the handicap requirements since she could not find the information in the Scituate Zoning Bylaw. Mr. Walter said that handicap requirements are listed in the Massachusetts Architectural Access Board and the State Building Code. The primary access to the building must be handicap accessible.”

Atty. Nguyen said, “Regarding the six recommendations proposed by the DRC, we are all okay with all of them except for the dormers because of the corners that create negative chi (negative energy). My clients speak limited English so I will have to keep translating for them.”

Mr. Fenton asked Mr. McGowan, Chairman of the DRC, to speak to the issues, especially the dormers. Mr. McGowan said, “What we are adverse to is creating a commercial building in what is more or less a residential street. Unfortunately, the applicant’s architect was not able to be at the meeting. I sketched where the conversation was going but it is not my intention to design the building for the applicant. This is more to propose a plausible direction as to what should be maintained and what would be a plausible addition. We felt dormers on what is essentially a cape like structure would be appropriate. We missed the whole feng shui aspect of it. I am not sure that since we only met two days there is anything that is ready to vote on. They haven’t really addressed the handicap access issue. They will have to have some structure on the building somewhere somehow. Parking – there are six parking spaces in front of the building and one needs to be a handicap space. There are site issues that they need to address. Perhaps it would be best to bring it up at our regular meeting next Wednesday, Oct. 18th.”

Mr. Fenton asked, “What about the parking on this site?” Ms. Harbottle replied, “There is supposed to be one per bedroom so that would be four and then two which is really thin for the number of stations. One thing that you might want to look at - I notice tanning booths here not sure if there are some at their Front St. location. Is that an expansion? I think that this would fall under ‘all other uses’. I think it is more of a service than a retail business. This is high intensity business.” Atty. Nguyen said there was approximately 1600 S.F. on the first floor. Mr. Fenton said, “You will not be able to meet the parking requirements on the site.”

Mr. Limbacher said, “What is the difference between what Dr. Price had on this site and the proposed nail center?” Atty. Nguyen explained, “This is just by appointment. It is not a walk-in business. We have four family employees. We don’t get walk-ins now. We have only four staff so we can only do so much business. The business is very seasonal. It is very dead in the winter.”

Mr. Fenton said, “So there are at least a couple of outstanding issues. One is the discussion about the roof line. We understand and respect the applicant’s issues around the changes. The DRC had a very thoughtful look. This is an important transitional building. To their credit they have agreed to accept some of the suggestions immediately. Are there any questions from the Board?”

Mrs. Brennan raised some questions about the parking spaces.

Mr. Limbacher said, “I think they should work through with DRC and figure out a meeting of the minds there on it. Parking needs to be addressed as well as handicap access. I don’t think there are insurmountable issues. There is common parking in Cole Parkway. It is done by appointment. If you are early for an appointment and there is not a parking space you can always park in Cole Parkway and walk up the hill. Because of the fact that the upstairs is utilized by the family, they control the ability to take their on-site parking associated with the housing and move it down to Cole Parkway.”

Mr. Fenton said, “They could rent out the Accessory Dwelling if they wanted to so that could effect the parking.” Mr. Limbacher said, “We could say that the parking should be on the site.” Mrs. Brennan added, “They could make arrangements to park elsewhere.”

Mr. Fenton explained, “I think we can recognize complimentary parking – residential above, business below – day and night parking. We, as a Board, have to think about what will happen if this gets sold to somebody else.” Ms. Harbottle suggested, “You can condition it so it states that the Site Plan Review is granted only for the nail center and if there is a change in the business I would require a new Site Plan Review so that the parking issue can be addressed. DPW did send a memo saying there was a prohibition on parking on the street.” Atty. Nguyen said the applicant would not encourage anyone to park on the street. She pointed out that the neighboring business has three huge trucks constantly there.

Mr. Walter said, “The DRC comments are right on. I understand about the fung shui

and some of the concerns about parking. Is there a chance that the apartment upstairs could be made into two bedrooms and not four so you don’t do a full two stories?” Atty. Nguyen replied, “We would lose the ocean view if we don’t open it up. There are currently no windows on the right side of the house. We want to raise it up and open up that wall.” Mr. Walter added, “Perhaps part of it could be two stories and part one story.”

Mr. Fenton said, “It strikes me and Mike, the DRC Chairman, that there should be one more round of discussions with the applicant and the DRC. Would the applicant be amenable to meeting with them?” Mr. McGowan said, “Our regularly scheduled meeting is next Wednesday.” Mr. Fenton said, “It would be beneficial to have one more meeting and have your architect there to talk through a handful of remaining issues. I think you might want to think about handicap access. Parking - I see a meeting of the minds regarding parking (off-site; complimentary parking). I would ask you to speak with the applicant about us possibly conditioning the Accessory Dwelling Permit for your use. Example: if you were to sell the structure we would have to reevaluate the Permit for the next owner. So again – parking, handicap access, possible condition on the Accessory Dwelling Special Permit - when you come back for that think about the change in architecture. We have some very relevant concerns from the DRC. You could have a meaningful dialogue and then come back to us. There will be no surprises.”

Atty. Nguyen said, “We would like to have some idea about time frames. We would like to have construction done during the slow season (winter).”

Mrs. Elizabeth Bourne, Harbor Heights Road, said, “I went up to see the plans and there was no real elevation shown on the plans if they want to build an addition to the first story. I have not seen any kind of surveyor’s tapes out there. The back yard has a broken down stone wall and brush. Their addition, I was told, was supposed to be within 8’ to meet the zoning setback for business. I want to know where that line is. I want to see that surveyor’s tape to make sure that it is within the 8’ of the property line.”

Ms. Harbottle explained, “The addition shown on the plan was something that Gordon Price was planning to do. It does not relate to this application at all. The back end of that building will not change.” Mr. Fenton said, “The footprint will not change.” Mrs. Bourne said, “I have not seen the rear elevation. There is a front elevation and a side elevation. I have to look at the back of the building and I want to make sure that it isn’t going to change.” Atty. Nguyen said, “The only thing changing is the front of the building. There are no changes in the back.”

Mrs. Doreen Close said, “If it is going up two stories in the back it will change.” Mr. Fenton said, “The back isn’t changing.”

Mrs. Bourne said, “I still think they ought to have a surveyor’s plan of the property.’ Atty. Nguyen replied, “We have a mortgage plot plan. Mrs. Bourne said, “I would like to see it surveyed. They might decide to do things in their yard. They might want to put a deck out there. It is hard to know where that property line is. I think that for their own comfort they want to get it surveyed.”

Ms. Harbottle said, “There were some other memos that came in. The Health Agent mentions the need for good ventilation.” Atty. Nguyen said, “Every station has their own ventilation. We do not want it to be a health hazard for our clients or our family members. They have been in business for over ten years. We are regulated by state code. They do site inspections. They drop in at any time. We have had no violations or complaints.”

Ms. Harbottle referred to the comments from the Fire Chief regarding the storage of chemicals on site. Atty. Nguyen said, “It is all state regulated. We only have acetone and alcohol.” Mr. Fenton said that the Fire Chief may want a list of chemicals and there may be a special form to use.

Mr. Fenton said, “Essentially this needs to happen. You should go back to the DRC. I don’t know about cost but it might be fair to ask for some kind of a site sketch e.g. something representing the current site. I am not sure how reasonable or unreasonable that is. It is a request from the neighbor and may be part of your discussions with the DRC.” Atty. Nguyen replied, “I am not sure if you are asking for an instrument survey but that would cost between $1500 and $1800. We are not changing any of the boundaries.” Mr. Fenton said, “I was not discussing an actual survey. I don’t think that a survey is necessary. I was thinking more about some sort of rendering.” Mr. Walter said, “Take the big drawing and do an overlay on that.”

Mr. Fenton said, “You need to show the parking, the handicap parking space, and the handicap ramp. The rendering would be an opportunity to lay that out. If you have any thoughts about a deck out the back then now would be the time to show it. Any exterior changes should be shown. Make sure that your plan represents the true picture of the building and site.”

There was a discussion on the time for the next meeting. Time was scheduled for a meeting with the DRC on Oct. 18th and with the Planning Board on Oct. 26th.

MOTION: Mr. Limbacher Moved to continue the Site Plan Administrative Review Public Hearing regarding property at 14 Allen Place to October 26, 2006 at 7:00 P.M. Motion Seconded by Mrs. Brennan and the vote was a unanimous vote in favor of the motion by the members present. Mr. Fenton, Mr. Walter, Mr. Limbacher, Mr. Fagan, and Mrs. Brennan voted in favor of the Motion.

The discussion on the zoning articles continued with a discussion on the three petitioned articles as follows:

1. Replace Section 950(8) re Historic or Traditional Architecture
2. Add language to Section 620.1 re Third Floor Setbacks
3. Replace Section 760.2 re Off Street Parking

Mrs. Doreen Close represented the petitioners of the above noted articles. She read aloud a prepared statement about development in the Harbor and the above-noted articles, particularly about the issue of the a Site Plan Special Permit and the need for five parking spaces. See file.

Article 13 Off Street Parking:

Mrs. Close said, “Lets start with the discussion on the article regarding Off Street Parking. Back when this put in place back in the 1980’s Town Meeting made it really clear and it states that the threshold for a Special Permit (S770) was five parking spaces and the reason for that was the difference between a building that was small and a building that was large. As you know there has been some confusion when dealing with developers. They did not have to provide the Special Permit because they said that they had a net loss in parking and they came up with calculations which frankly don’t make sense to circumvent this very important policy of a Special Permit. I talked to Laura today and I made an attempt to try to clarify that it but it is complex. Laura and I talked about working on this and I hope that Laura and I can work on it satisfactorily before Town Meeting. There is potential for this being tabled (Indefinitely Postponed).”

Mrs. Close continued, “I have heard that a developer can’t get two special permits. E.g. if they get one from the ZBA they can’t get it at the Planning Board too. That is kind of the strategy used by developers. That is not what the bylaw says.” Mr. Fenton said, “I have heard it called double jeopardy.” Ms. Harbottle said, “Barbara Saint Andre, Town Counsel, had an opinion that you should not do two Special Permits but there is a lot that is not black and white with this stuff. Now we have a different Town Counsel provided to us and maybe if we ask her she may have a different opinion.”

Mr. Limbacher said, “It is the same law firm. I would be very suspect if the same law firm all of a sudden changed their opinion. It is my understanding that you can’t condition a Special Permit on a Special Permit.” Mrs. Close asked, “So what is the point of the Planning Board having a Special Permit?”

Mr. Limbacher and Mrs. Close had a discussion on the Welch Company development’s Special Permit and Site Plan Administrative Review. Mr. Limbacher explained the workings of both boards. Mrs. Close said, “Some might argue that it should never have gone before ZBA. The ZBA refers it here but makes it an Administrative Review and makes the Planning Board powerless. The bylaw is designed to make the Planning Board powerless. A developer would much rather go to the ZBA.” Mr. Limbacher added, “Not all Special Permit’s issued by the ZBA have to come back to the Planning Board.” Mrs. Close said, “But the ZBA should not be determining whether it is a Special Permit or a Site Plan Review. When the parking is five or more parking spaces it is a Special Permit. This is highly complex. That is the bottom line. The bylaw is riddled with ways that a developer can get what he wants.”

Mr. Fenton said, “I can concur. My question is does this wording help close one of these gaps?” Mrs. Close said, “I think it will but I am not sure that the wording is exactly right yet. That is why I want to sit down with Laura but I don’t intend to rewrite the bylaw.”

Mr. Fenton asked the Board, “What would you like to do with Article 13 re S760.2?

I would like a sense of the Board. I am receptive to it. Bill has actually the question if we need Site Plan Administrative Review.”

Mr. Limbacher replied, “The distinction between the two is based on parking – whether it is an Adm. Review or a Special Permit. I don’t see how changing the language in 760.2 changes the decision as to whether it should be an Adm. Review or a Special Permit.”

Mrs. Close read aloud language in S770 about the need for five or more parking spaces. She said, “They go back to S760.2 and find a way to make it a net loss e.g. take the restaurant out and things like that. So maybe in S770 you should take out any reference to S760. The tapes from the prior Town Meeting are quite clear that this was intended to deal with five parking spaces or more. Section 760 is only a chart I am not sure yet where the best place is to put it. Anyway Laura and I will work on it and will work with anyone else who wants to work on it. This will take care of one little glitch.”

Mrs. Close said, “The lawyers I talked to said that no matter what it says developers will always push to get what they want.” Ms. Harbottle said, “You also have to realize that whatever it says it is going to be pushed in some opposite direction from what you want or from what the town thinks it really means.”

Ms. Harbottle said, “Section 760 just tells how the parking should be counted. We could just take it out.”

Mrs. Close continued to say that she would work with Ms. Harbottle on the language in the article. Mr. Limbacher reminded her that she must stay within the wording that was presented in the petition and as advertised for the article. Mrs. Close Doreen replied, “I spoke with Mr. Agnew about this and he thought that if people who signed the petition knew what the intent was that it would be okay. The purpose was to tighten the wording.” Mr. Limbacher explained, “But if the wording started out as 760 you can’t just change it to 770 because that would be outside the scope of the article.” Ms. Harbottle added, “Town Counsel will be the one to talk to. It will be up to the Atty. General when all is said and done.” Mrs. Close said, “We can amend it at Town Meeting.” Mrs. Chisholm offered to work with Ms. Harbottle and Mrs. Close on the article.

The Board agreed to continue their discussion on this article at the October 26th Planning Board meeting. Ms. Harbottle said that the revised language would be ready at that time.

Article 11: Historic or Traditional Architecture (By Petition)

Mr. Fenton said that this article amended the language in S950 Paragraph 8 of the Design Review for Business, Commercial, Mixed Use and Multi-family Development Bylaw. He read aloud the existing language of 950.E.8 and the proposed language.

Mrs. Close said, “There are some historic buildings. I am less concerned about what is there than where we are going. I have talked to hundreds of people and they are very concerned that the buildings coming before us in the future should have a quaint character. We can’t allow developers to decide on the scale. The authentic wood clapboards or shingles really address something like CVS. I don’t think this is too much to ask and it is something that the DRC could build on. This is mild compared to most towns.”

Mr. M. McGowan, DRC, said, “I applaud the effort but to a certain extent I think some of the language in this one is redundant in a way. The Introduction to the Guidelines state the proposal shall relate harmoniously to the nature and context of the existing buildings in the vicinity. It sets the tone for what you are trying to do. They are guidelines and when you start putting dimensional requirements in the guidelines they start to become regulations. We need to have an open dialogue with the applicants and not just have a check box approach. The reference to historic buildings – I don’t know that there are any. So I applaud the effort but I think it is somewhat unnecessary.”

Mr. Walter said, “When we put the Design Review Guidelines together we tried to be broad so that it would not be specific with style. We addressed items like scale, height, roof shapes, etc. I think that gives us the leeway to have a discussion with an applicant. We have a collection of eclectic buildings. We do not have a historic downtown. We have a lot of sentimental buildings down town e.g. the Welch Co. I understand where you are coming from, but I think that the way we have it now essentially works. I am comfortable with what we have now. Our working with the DRC needs to be emphasized more.”

It was pointed out that the Welch Co. proposal was the very first project addressed by the DRC and they really did not have much time to review it. Mr. Limbacher said, “We should get the DRC input up front. That goes a long way.”

Mr. Walter said, “We need to define historic. Over all the periods of time there are all these different types of buildings and styles of buildings that have been developed. You can pick and chose what you want to propose as a historic building. A modern building can be as beautiful as a historic building. It is about mass and proportions. It can have proper scale.”

Mr. Fagan said it was very good for the Planning Board to get input from the DRC. He also agreed with Mr. Walter that there are various styles of historic buildings with various types of clapboards, etc., and that various types of buildings both modern and historic can work well together. Mr. Fagan and Mrs. Close discussed architectural treatments and Mrs. Close explained why she had a real problem with the Welch Co. windows.

Mr. Fenton said, “What does your proposed bylaw change? I think it empowers the DRC to do more than it can do now.” Mrs. Close said, “What I am hearing frankly is that there is a real fundamental difference in our opinion of what the town should feel like. Donald – you say that a modern building can be beautiful. I can agree but not for Scituate. You say that we have all of this stuff here but it is language that does not require anything.”

Mr. Walter said, “It is up to interpretation. The language is there. I am a design professional. You will make your argument and I may say something different but we could both be right.”

Mr. Fenton said, “We can debate if this article resolves the differences e.g. if I had the DRC saying one thing and the applicant saying something different. Is there language here that allows a more clear adherence to one outcome or another outcome on that project. I really want to get the sense of the Board. The question is - does this language increase the Board’s capacity to require something from an applicant that can’t be required with the existing language? I would vote for it if I thought it gave it more capacity. I hear Don and Mike McGowan saying that the existing language is okay.” Mr. Fagan indicated he agreed with Mr. Walter. Mrs. Brennan said, “I like the intent but I don’t see it as workable.” Mr. Limbacher said, “I understand the intent but I see no additional value. You can’t define a historic building.” Mrs. Close said, “It is there already e.g. historic or traditional architecture.” Mr. Limbacher added, “I don’t see that I gain additional direction and in fact I may be taking away the DRC’s ability to negotiate with an applicant.”

Mrs. Brennan asked, “In writing something like this are we allowed to say that it must be from the federalist period? That would be going too far.”

Mrs. Close said, “Clearly the bylaw is just not working.” Mrs. Brennan said, “We are dealing with semantics here. How do we say e.g. that building isn’t historic.” Mrs. Close said, “Look at it point by point. We are saying that it has to blend in with the historic architecture that surrounds it. Try to make it feel that way.”

Mrs. Chisholm said, “This is better than what is here now. What is there now doesn’t really say anything. This says a bit more and it includes some things that are already in the Design Review Guidelines. You could take out the last part about authentic wood clapboards and shingles and put the rest of it in.”

Mrs. Close said, “There is one really important thing. This says ‘shall’ and yours said ‘we will talk about it’. This DRC may all sorts of recommendations but they had no teeth behind it.”

Mrs. Brennan said, “It is interpretation and that is the tricky part. The Welch Co. was eluding to the Lawson building.” Mrs. Close tried to argue her position on the Welch Co. and Mr. Fenton said that he would not allow an argument about the pros and cons of the Welch Co. between Mrs. Close and the Board. The discussion tonight would be strictly on the pros and cons of the proposed article.

Mr. Fenton asked, “Is there any interest in a version that loses the last sentence that says that authentic wood clapboards or shingles shall be used but keep the beginning paragraph? This is a yes or no.” Mrs. Close said, “I am interested in tightening up the bylaw in any way.” Mr. Fenton asked, “Is there any interest from the Board? Donna did make a point that it gives more direction. I think it still allows some negotiation.”

Mr. Limbacher asked, “So we are discussing the verbage up to ‘patterns’.” Mr. Fenton replied, “Yes.” Mr. Walter said, “Are we looking to say that everything has to be historic? It says ‘shall’ adhere to the character, massing, scale and design found in historic buildings of these areas. We don’t have historic buildings down there. ” Mr. Limbacher said, “It says shall adhere to and that means it has to look pretty close to what is existing.” Mrs. Close asked, “Are there any words that might work e.g. shall blend in. I don’t it want it to be too loose.”

Mr. J. Joyce asked, “How do I know it does not relate to residential. [Mr. Fenton referred his to S950 which indicates that residential does not apply.] Shall adhere is a very definitive statement. The other thing I would say is that remembers that the DRC just started up six months ago. I have been impressed by what they have done so far.”

Mr. McGowan said, “The whole nature of the Guidelines is to give us a chance to negotiate things. [Mr. McGowan read aloud portions of the DRC Guidelines.] Example: do you want to match new development to the hardware store building? I don’t think it helps and I think it is contradictory to other things in the Guidelines. One thing it deletes is the sentence that says that historic, traditional or significant structures or architectural elements should be preserved to the extent possible. That is a valid thing.”

Mr. Fenton said, “So do you want to mess with this language more (on another occasion) or do you want to vote it. I don’t hear the votes to support it. I don’t think that I have three votes to support to it. There might be some crafting of some of your language that might be appropriate. I can imagine a solution using some of this language.”

Mrs. Close replied, “The bottom line is I want to see something done. I want this Board to be more definitive. You should say that this shall be done instead of leaving it open and vague. I am concerned that it is too vague. Other towns do it.”

Mr. Fenton said, “My question was to you – are you interested in pursuing a further discussion on this one. I think I have a fair feeling of the sentiment of the Board is and I don’t think that you will get the Board to support it tonight. I would suggest we revisit it.”

Ms. Harbottle asked, “I am wondering if I work on this and make some changes are there going to be votes to support that or is it something where it is basically a philosophical question.” Mr. Fenton asked, “Does anyone see this as a crafted version that they might vote for or do you want to say it is really early so lets give this thing one more cycle or we can do it at Town Meeting? What do you think?”

Mr. Walter, Mr. Fagan, Mr. Limbacher, and Mrs. Brennan indicated that they did not like the proposed article.

Mrs. Close said, “There is no movement here on this which is stunning. I can present it but I will have to fight the Board. I don’t like to do that.”

After more discussion there was an agreement to discuss this article, along with the other proposed zoning articles, at the next meeting on the zoning articles .

Article 12 Third Floor Setbacks

Mr. Fenton read aloud the proposed language and said, “This is in Section 620.1 and not just for the Overlay District. It adds a paragraph to the Height and Open Space Requirements. That is much like the one we did for the Overlay District. Is it identical?”

Mrs. Close replied, “The problem is that the other one is optional and this is definitive.”

Ms. Harbottle explained, “This one would be for everything. The other one is found on Page 74 of the Village Business Overlay District.” Mrs. Close said, “This carries it everywhere. Now it is optional.” Mr. Fenton said, “So this says ‘all third floor construction’. What is the reaction from the Board?”

Ms. Harbottle said, “The intent was that it was for the Business District so it has to be put somewhere so it relates to the GB (Greenbush Business) and the HB (Harbor Business) districts. It should be clear that it is not for the Commercial District.” Mr. Fenton said, “So we can just say that in the GB and HB Districts the third floor shall be set back.” Ms. Harbottle agreed with Mr. Fenton.

Mr. Fenton said, “I am not adverse to this. What do you think?” Mr. Limbacher said, “It too restrictive. It says shall. Every building that has three floors must be set back.” Mrs. Brennan said, “It allows sun on the street.” Mr. Fenton added, “It says you can set it back seven feet or you can use dormers and if you use dormers they can’t be bigger than 12’.” Mr. Fenton gave some examples of how a building could be constructed using the proposed requirements and said there would still be flexibility of design. Mr. Fagan said, “I think it works on a 40’ building but not on a 24’ building.”

There was a general discussion on setbacks and roof lines in the Harbor, North Scituate and the Greenbush Business Districts.

Mr. McGowan said, “I am not clear as to what is different about this and what is in the bylaw now.” Mr. Fenton said, “There is no third floor setback right now.”

Mr. McGowan said, “Some of this is what we were trying to get them (Warners) to do at our last meeting.”

Mr. Fagan said, “This is difficult for a smaller footprint.” Mr. Walter asked, “What if someone proposed a gambrel facing the street?” Mrs. Close replied, “Mr. Walter is right but that does not usually happen. The gambrel could have dormers in it.”

Mr. Walter said, “Again, I mentioned the gambrel. Gambrel and gable ends come to mind.” Mrs. Close said, “You could add some language that would be an alternate solution. Don – would you be willing to think about this? This is a really important one, particularly on Front Street.” Mr. Fenton said, “I like the notion of it for the Harbor District. That is why I was strongly in favor of it for the Mixed Use Bylaw. I am there but I think that Don made enough of an issue around it that I get the concern that there should be some alternatives.” Mr. Walter said, “My concern is that it could be too restrictive.” Mrs. Close said, “Why are you so afraid?” Mr. Walter replied, “It is not about being afraid at all. Sometimes you don’t know just what we are going to get.” Mrs. Close said, “This Board can override bylaws. You do it all the time.”

Mr. Fenton said, “So just to recap. Article about S760.2 – it may become a dramatically simpler change to S770 and changing the reference to S760. Number 2 on third floor setbacks – I think Don will think about this one. I think there is interest in this but we need language to capture that. On the first article we did not have strong support.

Mr. Joyce made a good point that we are really early in the process here. There are a lot of compounding issues. One being the Special Permit and only doing the Site Plan Adm. Review process. For some of us that is a troubling problem. We can discuss these at our next meeting. I give much credit to the good work done by the DRC. I think that having the DRC interact on these things sooner will be great. I will leave this on that positive note.”

MOTION: Mrs. Brennan Moved to continue the public hearing on the zoning articles on the Warrant for the Special Town Meeting commencing November 13, 2006 to October 26th at 7:15 P.M. Mr. Fagan Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

On October 26th the Board will also discuss other articles on the Warrant e.g. Historic Commission and prepare their recommendations to the Special Town Meeting if required.

ACCOUNTING: Motion duly Moved by Mr. Limbacher and Seconded by Mrs. Brennan and voted unanimously to pay the following:

1. Patriot Ledger ($1029.12) for legal advertisement re Special Town Meeting.
2. Patriot Ledger ($117.13) for legal advertisement re Scenic Road Hearing (Clapp Road – Boy Scout Project).
3. W. B. Mason ($63.12) for chair mat.

Respectfully submitted,

Merrilyn O’Brien, Secretary

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Mary Patricia Brennan, Clerk

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Date Approved