MINUTES

FEBRUARY 8, 2007

Members Present: Mr. Fenton, Mr. Walter, Mr. Limbacher, Mr. Fagan, Mrs. Brennan, Mrs. Chisholm

Others Present: Mr. Doug Aaberg; Atty. W. Ohrenberger, Mr. P. Mirabito, Mr. Mooney

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

ACCEPTANCE OF AGENDA: Mr. Limbacher Moved to accept the Agenda. Mr. Fagan Seconded the Motion and the Board voted unanimously to accept the Agenda.

Old Business, New Business, Correspondence, Administrative Items, Updates, Acceptance of Minutes (September 14, 2006, October 12, 2006)

Mr. D. Aaberg of Aaberg Assocs. represented the applicant. Mr. Aaberg gave the Board a new mylar which in included a note about having ZBA approval. See Note #9.

Mr. Aaberg gave the Board a letter from the Town Clerk’s office stating that Elm Park is used and maintained as a public way.

Mr. Fenton said, “You have access. Elm Park is a public way. Did you talk about access issue, for fire etc., when you were before the ZBA?” Mr. Aaberg said, “Yes, and Neil Duggan spoke to the ZBA about that.”

MOTION: Mr. Walter Moved to endorse as Approval Under the Subdivision Control Law Not Required a plan of land in the Town of Scituate located at 11 Elm Park. Plan prepared by Aaberg Assocs., Inc. for Owner/Applicant: Lund & Barbara Jensen. Plan dated January 18, 2007 and revised February 7, 2007. Motion Seconded by Mr. Fagan and the vote was a unanimous vote in favor of the Motion. Mr. Fenton, Mr. Walter, Mr. Limbacher, Mr. Fagan, and Mrs. Chisholm voted on the Motion. [Mrs. Brennan was absent at this point in the meeting.]

There was no one present to represent the applicant. Mr. Fenton said that town land will be used to build the Habitat for Humanity house. The purpose of the Form A Plan is to give the land to Habitat for Humanity. There were no questions or comments.

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 606 Chief Justice Cushing Highway. Plan prepared by Ross Engineering Co. for Owner/Applicant: Town of Scituate. Plan dated January 29, 2007. Mr. Walter Seconded the Motion and the Motion was voted favorably with a unanimous vote of the members present. Mr. Fenton, Mr. Walter, Mr. Limbacher, Mr. Fagan, and Mrs. Chisholm voted on the Motion. [Mrs. Brennan was absent at this point in the meeting.]

Mrs. Brennan arrived at this point in the meeting.

Mr. Fenton gave the Board a quick update on the Humarock zoning proposal. He explained, “Keith Jansen of Humarock had asked if the Board would consider using an alternative consulting company, Klopfer Design Group (KDG), rather than the consultant who wrote the Village Business Overlay Zoning. He sent me a PDF file about them. KDG would come to Humarock for no money and do a site walk with any of the Board members who want to show up. Laura had thought that we had about $4,000 to do the work and she had talked to Larry Koff and Larry Bluestone (the Larrys) about rezoning work in Humarock and they suggested some work they could do for $4,000. Perhaps we should rezone the whole thing and not just do an overlay. I think that we have three options. First - just go with the Larry’s and come up with a simple proposal. There would be enough money for a public meeting and compose some ideas. We could go with the KDG firm. I think the amount would be such that we would not have to go through the whole RFP process. We can have some interaction with KDG to see if we think they are well qualified. We will have to think about the roadway network because a lot of people think that that is a big issue down there. KDG are more land use guys. The third option, and I will just put this up so that you can think about it, is that we have an article before Town Meeting to reallocate the $10,000 that we have now to finish the Subdivision Regulations to do a review of the zoning bylaw. One could imagine taking that $10,000 plus the $4.000 and use it for an overall community zoning review and use Humarock as an area for the new concepts. Example: new height bylaw. I just want to put those three items out there and ask you to think about them. Keith Jansen said he would try to set up a meeting when the Board may want to go (perhaps between Feb. 22 and March 8th).”

Mr. Limbacher said, “I would like to see their PDF file. I am not opposed to do a walk through with them. I am not opposed to looking for an alternative.”

Mrs. Chisholm asked, “Do the people in Humarock like that idea?” Mr. Fenton replied, “They seem very receptive. They were having a meeting today with the group that they set up awhile ago and he will bring it to them as well so we will know for sure They liked the idea of a company that has done this kind of stuff in other communities.”

Mr. Walter asked, “How much would they cost?” Mr. Fenton replied, “Larry and Larry will do it for $4,000. The question is can KDG do it for $4,000 because that is all we have. I will send you the PDF file. The big question I have is does anyone have a problem with switching consultants?”

Mrs. Chisholm replied, “I think it is up to Humarock to decide.” Mr. Walter said, “The thing about Larry and Larry is that they are familiar with the villages.”

Mr. Fenton said, “I think they (KDG) have the software and they do the kind of visioning exercises that I like, e.g. take an existing streetscape and show what trees and a sidewalk would look like. I did not think the Larrys did much of that sort of thing. If KDG are willing to bring those tools to bear for short money it would be good. If it costs $25,000 then all bets are off. If we don’t like them we can always go with the Larrys.”

Mr. Walter said, “It will be sort of a walking interview.” Mr. Fenton replied, “Yes, there will be no commitment other than to do a walk. We can tell Keith Jansen and I will work on setting up dates for the walk and when a date is chosen an agenda will be posted.” The members agreed with Mr. Fenton’s proposal to set up a meeting with KDG.

Mr. Fenton agreed with Mr. Limbacher’s perception of the Selectmen’s opinion on the TOD grant and he also agreed that the Selectmen should definitely accept the grant. Mr. Fenton noted that Ms. Harbottle and the Streetscape Committee did great work on getting the grant. The idea is to encourage development near transit centers but not to encourage traffic so that the grant money would be used for sidewalks that the town could not otherwise afford.

Mrs. Chisholm agreed with both Mr. Limbacher’s and Mr. Fenton’s comments and she said that it would make no sense at all to return the grant.

Mrs. Brennan pointed out that more density in Greenbush will occur even if the Town does not accept the TOD grant.

Mr. Fenton asked the other members if he and Mr. Limbacher could represent the Planning Board on this issue with the Selectmen and the members agreed.

It was noted that by a vote of the Board at the January 11th Planning Board meeting the Public Hearing was immediately continued to March 22, 2007 at 8:00 P.M.

The applicant, Steve Mooney of Popes Pond Cranberry Company was present along with his attorney, William Ohrenberger and his engineer, Paul Mirabito. See sign-in list for names of others present at this meeting.

Mr. Fenton said, “Would you please bring us back up to speed on this because it has been awhile since we have talked about this.”

Atty. Ohrenberger said, “Previously you have approved several different configurations for this property e.g. ANR plans. There was a Preliminary Plan some time ago which you approved. This definitive plan basically just shows the division of the property into two lots. Lot 1 where the existing house is and the other one. There is a small cul-de-sac.”

Mr. P. Mirabito, Ross Engineering Co., showed the Board a series of drawings and he said, “This is a proposed two lot subdivision. The locus is at 149 Old Oaken Bucket Road. There is an existing dwelling in this location here and an existing cranberry bog in this location here. There are two lots before the Board for approval. Lot 1 has 71.57 acres and Lot 2 has 23.21 acres. We show a perimeter line of the property owned by the applicant. There is a proposed cul-de-sac which will provide legal frontage for Lot 1 and Lot 2. This smaller amount in this area here is Lot 5 is for the subsurface retention area. Because that is over 500 S.F. it has to be on its own lot. This next plan is the utility plan. There is a wetland line which is shown in orange. The existing dwelling which is in this location here will be razed, torn down, and rebuilt in this location. Lot 2 will have a proposed dwelling and garage here. Each will have a driveway off of the proposed cul-de-sac. The septic systems will be up by the street. We have percs here. It is a well drained gravel soil. This is the proposed underground leaching area. The water from the cul-de-sac and the driveways will go into a catch basin, into a water quality tank and then into the leaching area. There is an overflow pipe here that takes care of the hundred year storm. Again, this is a two lot subdivision. The existing house here will be replaced with a new one so in effect we are only adding one house under this project. We have received comments from the Board of Health, the Engineering Department of the DPW and Traffic Rules. The Engineering Dept. has asked that we not have as much pavement as shown here. The reason we show all this pavement is because that is what your Rules & Regulations require. We could cut this opening down. We will check with the Fire Department. We propose a hydrant here and if the Fire Chief wants another one we will gladly provide that.

Mr. Mirabito continued, “Old Oaken Bucket Road is a Scenic Road and there are

some trees will come out. At the time we apply for a Scenic Road Hearing we will have the sight distance done as well. Some trees have already been cut in the last few months in conjunction with the project being done by National Grid. There are a few trees that will have to come out and we will show that on the plan for the Scenic Roadway Permit.

Traffic Rules will also get a copy of that and the site distance will be more than adequate for these two lots. Again, the septic system will be here. We have storm drainage calculations for this small area. It will be more than adequate to handle the flow. What we are doing is to recharge the water back into the ground in accordance with the Water Resource Protection District Bylaw requirements. We will do what we are required to do. I will end my presentation.”

Mr. Fenton asked, “Have the drainage calculations been shared with David Nyman? If not, they should be.” Mr. Mirabito said, “I don’t know if he has seen it.” Mrs. O’Brien, the Secretary, explained that the money to cover the cost of Mr. Nyman’s services was submitted by the applicant but it appears that the plans had not been sent to Mr. Nyman because up to this point the public hearing had been continued a number of times without a presentation being made by the applicant.

Mr. Limbacher asked, “Why would you not do this as a common driveway?” Mr. Mirabito replied, “Because the legal frontage for these lots is here and here. The cul-de-sac provides the legal frontage for these lots. This opening here – the DPW wants us to narrow it down to 24’. We may not need that much.” Mr. Fenton said, “Anything you can do to reduce the runoff will be good.”

Mr. Mirabito described the amount of acreage and the upland area for each lot.

Mr. Limbacher asked, “So there will be no further subdivision of those lots.” Mr. Mirabito replied, “No, because here are the cranberry bogs. Here is the upland.”

The Chair called for comments/questions from the public.

Mrs. Kris Van Lenten, 150 Old Oaken Bucket Road, asked if there were gas lines in Old Oaken Bucket Road. She said she understood there were no gas lines there. Mr. Mirabito replied, “We show proposed gas lines, but I am not sure if it is here.”

Mr. Jim Gilpin, 95 Satuit Meadow Lane, Norwell said, “I abut the other side of the cranberry bogs and I own cranberry bogs out there. We (Mr. Gilpin mentioned the name of another person) operate bogs off of Winter Street and we have always showed an interest in buying those bogs. We just want to know if there is an opportunity to purchase those bogs in order to keep those bogs operating.” Mr. Fenton asked, “Have you talked to the applicant?” Mr. Gilpin said he had not. Mr. Fenton said, “You would like to keep it under an agricultural use.” A gentleman in the audience said, “With all due respect it is not an agricultural use now.”

Mr. Lance VanLenten, 150 Old Oaken Bucket Road, said, “We are very pleased with the conservative design. This area is very special. I am totally in support of this project. Perhaps there is an opportunity for a purchase for water resources.”

Mr. Jim Gilpin said, “I just want to mention that John operates the bogs on the other side of Winter Street. I own the 31 acres there. We are pressed right now, with the acres that we have, to have an efficient operation because our bogs just aren’t big enough. I can’t understand how two separate people can actually have a viable operation there unless it is just a hobby for him. There is just not enough acreage there to make it feasible. I just want to note that as well.”

Mr. Fenton said, “I am going to talk in more detail about the roadway design. I am very sympathetic with Mr. Limbacher’s view and that of the DPW that there is a lot of asphalt. I understand that you did it according to our codes. We always want to minimize storm water runoff. Rather than providing a manner to handle it better the best thing is to have less of it running off. I would be very interested in a design that would reduce that roadway width. I can imagine it being 18’ or 20’. I could see it coming to that width with maybe a hammerhead construction that would allow a turning radius and utilizes the entry of the two driveways.”

Mr. Mirabito said, “The Fire Dept. has a new vehicle. What we could do is to come straight back in 20’ (that is the width that the Fire Chief wants) and put the first hammerhead here and second hammerhead here. We could cut out all this pavement here and here. It would be easy to do. As long as you have no problem with that we would be happy to do that.” Mr. Limbacher said, “I would like that.” Mr. Fenton added, “And functionally that would work as well or better.” Mr. Walter and Mr. Fagan indicated that they agreed with Mr. Fenton. Mrs. Brennan asked, “Are you saying that part of the hammerhead would be part of a driveway?” Mr. Mirabito showed Mrs. Brennan how a fire truck would get in and out.”

Mr. Fenton said, “I would like Dave Nyman to weigh in on this.” Mr. Mirabito said, “We would still keep the catch basin.”

Mrs. Brennan asked, “How do you access the rest of the uplands?” Mr. Mirabito showed her the upland areas and the access to the uplands. He noted the areas of water and the location of the Walnut Tree Hill Subdivision.

Mr. Fenton said, “I would like to hear if there is anything else that the Board would like the applicant to be thinking about. My open questions are: check with the Fire Department regarding that hydrant. It sounds like they will be receptive. DPW is clearly interested in downsizing the pavement.”

Mr. Limbacher asked, “You have an overflow. How is that overflow going to work?” Mr. Mirabito explained, “There is a catch basin here and that goes into a water quality tank and from there the water simply goes here. These are used for septic systems and they are four feet wide and four feet long. There is crushed stone around them and the water goes in there and just seeps out to the area around it. If there was a 100-year storm you would likely not need this but we just put it in as a safety valve.”

Mr. Walter asked about landscaping. Mr. P. Mirabito said, “The only trees that we will have to take down along the road are for sight distance. The house on Lot 1 that is pretty much opened up. This line is the 100’ buffer zone from wetlands. This is 50 buffer zone.” Mr. Walter asked, “Is additional screening necessary? I like the way it is now. I would like to know if once the road is opened if there was a way to minimize the view from the houses.” Mr. Mirabito replied, “Some trees have been cut down by National Grid.” Mr. Fenton said, “Put a little curve in the road – that would help.” Mr. Walter added, “I would suspect that these houses will be large.”

Mr. John Coffin, 116 Old Oaken Bucket Road, said, “I am curious about the water flow out there. This area drains quite a large area. There is a control structure, I gather, on Lot 1. I was wondering if you plan to remove that or will it be left in place.” Mr. Mirabito replied, “If you are talking about the one under the street up here – we aren’t doing anything to that. We don’t need to touch that.” Mr. Coffin continued, “The reason I asked that is if it is left in place and not used it will be an opportunity for vandalism.” Mr. Fenton asked, “Do you know who owns it?” Mr. Mirabito replied, “That has nothing to do with this project at all.” Mr. Fenton added, “It is off the lot. That is important. It is not that homeowner’s responsibility.”

Mr. Fenton asked, “So where are we?” Mr. Limbacher replied, “We need to send the plan to Dave Nyman for his review of the drainage calculations.” Mr. Fenton said, “And check with the Fire Chief.”

Mr. Walter said, “I would like to see what the existing landscaping is.” Mr. Mirabito said, “We can show that.” Mr. Walter said, “There may be a need for some additional buffering on the street.” Mr. Fenton added, “Right now, as you drive down the road, it does not seem like it is over developed right now.”

Mr. Fenton asked, “Is there a sidewalk there?” Mr. Mirabito replied, “We asked for a waiver on that.” Mrs. Brennan asked, “What does the town get in lieu of the sidewalk?” Mr. Fenton asked, “Is there an impact that we need to mitigate? This is the time to say it so that the applicant knows.” Atty. Ohrenberger pointed out. “If there was a sidewalk there – de-icing chemicals may effect our water supply.”

Mr. Fenton said, “Don has raised the question of the need for visual screening. That is part of the subdivision.” Mrs. Brennan said, “In lieu of the sidewalk the applicant could put in more screening in addition to the screening that comes with a subdivision. Maybe they could triple the screening, or make it big enough to actually provide screening.”

Mr. Fenton said, “I would go further to say that we want to keep as much of the mature screening that is there now. We can make sure that the plan reflects that. There is no landscape plan now. You should represent the major growth that is there now.”

Mr. Mirabito replied, “I will have to show some of this for the Scenic Road hearing.”

Mr. Fenton added, “So we want screening that will compliment what is there now.”

Mr. Mirabito said, “I will come back with photographs to show you what is there now. The buffers will be here and here. That road comes in from Old Oaken Bucket Road and actually slopes down.”

Mr. Fenton said, “I have essentially got four things. The first is the new road alignment

Get that to Dave Nyman. Check with the Fire Chief about fire hydrants. We want a more detailed landscaping plan with some increased screening to acknowledge that you are not going to do some other things.”

Mr. Mirabito said, “I will take a look at what is out there now and see if it needs to be supplemented.”

MOTION: Mr. Limbacher Moved to continue the Public Hearing regarding Cranberry Estates Definitive Subdivision Plan to March 8, 2007 at 9:00 P.M. The time to file the Decision regarding the Cranberry Estates Definitive Subdivision Plan has been extended to April 13, 2007. 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 on the Motion.

The applicant was represented by Atty. W. Ohrenberger and Mr. P. Mirabito of Ross Engineering Company. See sign-in list for names of others present at this meeting.

Mr. Fenton said, “This is a continuation of the three common driveway Special Permit Public Hearings. Just to remind everybody a Flexible Open Space Development Special Permit was discussed and approved for this location; however, the applicant is back before us with an earlier submission. This is a continuation of an already opened public hearing. It has not been before us for awhile so I will ask for an update.”

Atty. Ohrenberger said, “Way back approximately a year ago we submitted for three common driveway Special Permits. At the time your consultant, Dave Nyman, reviewed this and he thought it was fine. At that time the Board encouraged the applicant to do a Flexible Open Space Development for several reasons. So our client agreed to spend about an extra $50,000 to achieve what he thought was a good plan and we think that the Board felt that also but apparently some of the neighbors did not feel that way. Consequently they appealed and it is in litigation. Our client has directed us to proceed with the three common driveways so now we are going to do this. If for some reason this is not acceptable to people we have other options but that is not a subject for tonight.”

Mr. Mirabito said, “I prepared a presentation plan that shows the overall project. This is a Common Driveway Special Permit for three separate applications – one for each common driveway. [Mr. Mirabito showed the location of the three common driveways and the number of lots served by each common driveway.] Here there are ANR lots #1 through #8 and here is the lot for the common leaching area. The ANR Plan has been endorsed by the Planning Board about a year ago. This layout is virtually identically to the Flexible Open Space with the exception of the number of driveways. Here there would be a single family home and the remaining structures would be two-family homes. There is the same basin as the other one. This has also all been reviewed by Dave Nyman. We had a sight distance study done. We had our traffic engineer analyze it and it was adequate and our client gave you money to have Edwards & Kelcey (the consultants to the Board) review it and they sent you a memo saying that the sight distance was adequate for this driveway. The grading is the same as you saw with the Flexible Open Space and each structure is on a lot that has enough upland. I will answer any questions that you have.”

Mr. Limbacher asked, “How long is the longest driveway?” Mr. Mirabito replied, “It is about 600’ from the property line to the end.” Mr. Limbacher said, “So the drainage would be basically just what you would put around a normal house.” Mr. Mirabito replied, “No, there is a series of catch basins and drain manholes. The drainage system we have hear is the same drainage that we have with the Flexible Open Space.”

[Mr. Mirabito showed the Board the location of the drain lines, the catch basins, and how the water flowed into the detention basin. He also pointed to a 50’ buffer area.]

Mr. Fagan asked about the amount of imperious surface and Mr. Mirabito said that the common driveway plan had a little bit less. He showed the Board areas of paving under both plans.

Mr. Walter asked, “Did Traffic Rules comment on the this?” Mr. Mirabito replied, “Yes, they wanted to see the sight distance measurements and we provided that data. The Board wanted your consultant to review it and Edwards & Kelcey reviewed it.

Mr. Fenton explained, “ENSR does not do traffic analysis. They use Edwards & Kelcey to do that.” Mr. Mirabito said, “Edwards & Kelsey did their own investigation and they did send a report saying it was more than adequate.

Mr. Walter said, “The only difference is the three access points. We wanted to do away with the three access points on Rte. 3A so that is why we wanted the Flexible Open Space. Mr. Limbacher added, “And we negotiated screening down on Rte. 3A.

Mr. Fenton said, “Just to recount, we talked about additional screening at the bottom of the detention basin. Is this basin the same – same grading etc.?” Mr. Mirabito said, “Yes, they are the same.”

Atty. Ohrenberger said, “To cut to the quick of this - whatever the prior Decision was on the Flexible Open Space and the Conditions that the Board had – they are all acceptable with the Common Driveway. Our client is anxious to start. We will pursue litigation if there is litigation on the Common Driveway. Actually we don’t have to come back to this Board again, we will just use the Form A.” Mr. Fenton indicated he understood.

The Chair called for questions from the public.

Mr. Adam Brodsky said, “I am an attorney hired by several of the abutters. I have tried my best over the last couple of weeks to digest all the material relating to the various proposals. I just want to apologize ahead of time, despite my best effort I still have some information gaps. First of all – this is a Special Permit under Section 9 of Ch. 40A which means that the applicant is not entitled to such a Permit. This is clearly a discretionary matter for the Board. I have a conceptual problem this evening and then a couple of questions. The problem I have is that the applicant has two other development proposals that have been presented and approved by the Board (the Flexible Plan and the ANR Plan). The Flexible Open Space Development Plan was approved but is subject to appeal. Now you have a third proposal for the very same property. I respectfully suggest that the applicant should be forced to decide what he intends to do and which one he wants to go forward with. If you read carefully the bylaw for common driveways it is clear that when you apply for a Special Permit for common driveways you must actually build that common driveway. Under S780.5 you must present your agreement for maintenance as a prerequisite of the Planning Board granting the Special Permit. I could not find that agreement in the files. Similarly, for construction purposes you must have an agreement regarding surety (S780.9). I could not find any surety agreement in the files. Without those two documents relating to construction you can’t grant the Special Permit. I would concurrently suggest that you really need a commitment from the developer to move forward.”

Atty. Brodsky continued, “With regard to traffic, I received some traffic reports but I was not sure that I got all of them. With respect to your Traffic Rules & Regulations Committee, they actually recommended that the applicant obtain curb cuts prior to the Planning Board granting the Special Permit. As far as I know that hasn’t been done.

So it appears that there are still outstanding issues so the Board should not grant the Special Permit.”

Mr. Fenton said, “Just to recap – a maintenance agreement, a surety agreement, the Mass Highway approval for the curb cuts. Traffic Rules recommended that we not act until they get their curb cuts.” Atty. Brodsky replied, ‘Yes, and MHD has their own requirements regarding sight distance.”

Atty. Ohrenberger said, “I am amused. That is the word that I would use. First of all we are well cognizant of what the requirements for a Special Permit. The applicant has spent close to a year and good faith to achieve the Flexible Open Space. We wanted to have one driveway and Mass Highway preferred just one. In good faith the applicant wanted to go forward and build the Flexible Open Space. We know that we can get the curb cuts but we did not want to have a heavy hand. To say that the applicant has to show some firm commitment as to what they are going to build, I think that spending an additional $50,000 in pursuing something shows that. People don’t do that just for speculation. The fact that it under appeal that is the neighbors prerogative and that is fine.”

Mr. Fenton said, “To simplify - you are saying your commitment was to build the Flexible and if that can’t be done you’d commit to building this (the common driveways) Then there is the ANR.”

Atty. Ohrenberger said, “If the applicant is to show the commitment -- the applicant has offered to have the same Conditions as used in the Flexible. I have already said that.”

Mr. Limbacher said, “We asked him to put this plan (the common driveways) on the shelf. We cut the initial hearing short and we asked him to pursue a Flexible Open Space Development. The points made by the attorney are valid in that some items need to be addressed before approval. At this point we haven’t approved it yet. It is inappropriate to say we would approve it without those and that is what is being said.”

Mr. Fenton said, “Because of the curb cuts was a reason why we directed you away from the common driveway to the Flexible Open Space Development. The Traffic Rules memo has been brought back to our attention.”

Mr. Robert Chessia, 9 Stearns Road, said, “I still don’t think this is the best plan that they can put forward. There was an undevelopable lot that was bought for $26,000 at public auction. They found a site that perked. They come before the Planning Board. Members of the town should go by the Zoning Bylaws and we watched the Planning Board arbitrarily decide not to go by all the laws and just give them the Flexible Open Space. You bypassed the Board of Health. There was a meeting in March and they were supposed to show us how they can make this work. They came in with what can best be described as an incomplete plan. There were no rattails, no perc tests. This directly abuts the Town’s water supply and we have unwitnessed perc tests at the bottom of the hill. I don’t understand how this whole site drains into a detention pond. The water goes in there and goes into the ground. It will affect Butler’s house. It is near our Reservoir. I think you should look into this further. It is my personal point of view that you are not doing your job. I am very disappointed by what I have seen.”

Mr. Howard Szklut, 15 Stearns Road, said, “Just to go back - I did not realize that the last meeting was closed for good. I thought it was just closed for that evening and not closed for good. There were a number of issues that I thought were misconstrued by the Board and the public. You did not understand our issues. Some of the public did not want the retaining wall and were concerned about the natural trees that were there. You gave the developer the opportunity to not put in a natural border along that stone/concrete wall. I would ask that if you do go forward you take a closer look at that situation.

I think you need some kind of natural border along there.”

Mr. Szklut continued, “The second concern that Robert Chessia mentioned, and I am not an engineer or a hydrologist, is with the detention pond. If the water goes into the ground it will effect Butler home. Is there something that can be done to mitigate any kind of damage that might happen out there to her home? One of the reasons why the people were upset is that they didn’t feel, and I don’t feel, that the actual density of the project had absolutely been proven. Yes, the Flexible Open Space Development with a single driveway is better than this common driveway plan because with the Flexible you only have one curb cut. It does not take a genius to realize that. Are three driveways better than seven, yes, but we still need to figure out the right amount of homes for that area. It does not take a genius to realize that that property does drain to Tack Factory Pond which is the Town’s water supply. It may not be next week but whatever is in this area will eventually have impact on Tack Factory Pond and that is the water supply for the Town. Yes, he can build what he is entitled to build there, but if the bylaw dictates that there should only be five homes then that is a very serious issue and one that you should look at. I don’t believe it was one hundred percent looked at. Our water supply is a critical issue.”

Mr. Fenton said, “You said that articulately and I appreciate your comments. I just want to recap for the Board. The fundamental question is that they are asking about the conventional density plan which we require with a Flexible Open Space Development. Usually there is a conventional subdivision plan and you create rattails and do perc tests to prove what is percable. We need to make sure we are comfortable with the path that we took.”

Mr. Limbacher said, “The ANR provided density as it relates to the Flexible subdivision. That is apples. What I have here is oranges. I have three common driveways that stand on their own. It is clear that one driveway is better than three. That is how we got from this to the Flexible. In the Flexible we based the density on the ANR. But those two are gone and what we have in front of us now is three common driveways. The density of that does not relate to what was on the ANR or to what was approved under the Flexible.”

Mr. Fenton said, “Now we have to operate independently as to whether this satisfies the Common Driveway Bylaw. The density is based on square footage, driveway length and access. Does the Board want to weight in on this? It is important.”

Atty. Ohrenberger said, “Just to amplify what Mr. Limbacher said. We submitted to a much higher criteria under the Flexible Open Space than this. Economically now the applicant could make all kinds of arguments that he does not have to do what was from Flexible but he is snot saying that.”

The Chair again called for questions from the public. Mrs. Pat Butler, Rte. 3A, asked, “Where is the buffer of 50’. I thought you had to have a 100’ buffer from Rte. 3A. Also, I already have water under the house and as far as I can see it is coming up from the ground. My concern is that I will have more water 25’ from my house. How do I know that that water will not come on my property?”

Mr. Fenton said, “To answer your second question first – we asked Mr. Nyman that question. He said that groundwater issue stems from the height of the Reservoir water table. This is what I heard. Board members please let me know if you agree. He said that the detention basin will slow the rate of flow off of the site as is required by law and direct it around the back of your property and then enter the Reservoir. It will not make that problem any better but my understanding of what he said is that it will not make it any worse. Let me just ask the Board if I recounted what I heard from Mr. Nyman correctly.” The members all indicated that they agreed with Mr. Fenton.

Mr. Limbacher said, “There is more of a control release because of the basin.” Mr. Walter added, “The way I understand it is that site right now has a tendency to sheet down from the surface to the property below. By building the basin it will actually make that situation better. The flow is captured and then time released. I will tell you that I am not thrilled with the size of the detention basin but this is actually a better solution that building houses without any treatment.”

Mr. Fenton said, “So that is what we believe that we got from Mr. Nyman’s testimony.

It is important that you guys here that we asked Dave that question and that is how we understood his answer to be and that is how we interpreted it. It was not a matter of indifference. He said that the problem is driven by something other than what comes down the hill. That is the answer to question #2.”

Mr. Fenton said, “The buffer – does anyone have anything to say about the 50’ or 100’ buffer?” Mr. Mirabito replied, “It is a 100’ setback for structures with a 50’ vegetation buffer.” Mr. Fenton replied, “So the buildings will be 100’ from Rte. 3A so that is the answer.”

Mr. Steve Young, 5 Old Forge Road, asked, “When you say ‘he’ who is he?” Mr. Fenton replied, “I am talking about David Nyman, ENSR, our consultant. He does all of our runoff analysis.” Mr. Young said, “I understand, but is he a certified hydrologist?” Mr. Fenton replied, “He is a Professional Engineer.” Mr. Young continued, “That does not mean that he is certified to know. I can tell you that everyone on that Old Forge area have water problems. I am at the top of the street and I have water all the time. So, if he is not a certified hydrologist you can’t take his word. That is like me telling you that you have to take into consideration my opinion. That is just his opinion, he is not a certified hydrologist. Mr. Mirabito said the basin is designed for the 100 year flood and most of the time the riprap takes it out of that basin into the Reservoir so it is not going to be utilized. So you are telling me that that the water that is in that basin will go into the ground and that it will not raise and lower the water table of the surrounding area. It has to go somewhere. You can’t take his word. You have to have a certified hydrologist.”

Mr. Fenton replied, “I think we have got your point.”

Mr. Walter said, “The point is that he is a Registered Engineer and this is his business. That is why we hired him. He is not a town employee. This is his business; this is what he does. We use him on all of our projects.”

Mr. Fenton added, “And that is what we use as a standard of performance. He has performed admirably for us. I would submit that this Board was really explicit in asking the question.” Mr. Young replied, “If you got a certified hydrologist he would tell you something different. He is not a certified hydrologist. A P.E. is something different than a certified hydrologist.” Mr. Fenton said, “I understand your position.”

Mrs. Judy Aronson said, “I think Laura was the one that mentioned the control from the water going through. When we asked Nyman about the groundwater he was not sure.”

Atty. Brodsky said, “I have a variation of the same question. I know that Mr. Nyman is very well qualified P.E. I am familiar with his firm, ENSR. I assume that they have hydro-geologists on staff who could consult with him. I would not expect a P.E. to render a opinion which is really about localized mounding of groundwater. He is clearly qualified to comment on the management of surface water and storm water. I have all the reports and there isn’t any comments directly about localized groundwater mounding. This is an infiltration basin. You would expect to find localized groundwater mounding in that area. It is an open issue that I don’t think has been addressed. I am not suggesting that Mr. Nyman’s work is not appropriate. I am just saying that this should be looked at.”

Mr. R. Chessia, Stearns Road, said, “David Nyman passed on that question. He said he would not answer because it was not his expertise.” Mr. Fenton replied, “That is not my recollection but I am happy to look at the Minutes. Is there something new?”

Mr. Szklut said, “On this plan up here – how far off the property line is the retaining wall?” Atty. Ohrenberger replied, “It is identical to the Flexible Plan.” Mr. Szklut said, “I believe it is only 27’. Are there bylaws that says it has to be 30’?” Mr. Mirabito replied, “The Scituate Board of Health has a requirement that the wall has to be at lease 15’ from the property line and this is almost twice that.” Mr. Szklut said, “If it was a subdivision it would have to be 30’. That is my understanding and that again goes back to density question.”

Mrs. Pat Butler said, “Remember the big storm we had in May – both of my septic systems in my side yard were under water. If I had to put in another septic system it would have to be by the retaining wall. Once you create this water way will I be allowed to put in a septic system and how far away would I have to keep away.” Mr. Fenton replied, “My understanding is that it would not change at all regarding what you are allowed to do on your own property. You can do exactly what you can do now after this construction. It will depend on what the Board of Health says but it should be the same as what you can do now. This will not change what you can do in the future.”

Mr. Fenton said, “I am going to summarize. Mr. Brodsky asked about certain requirements about the common driveway agreement and he suggested that we address all of those. The abutters have raised concerns about the density which Mr. Limbacher answered that essentially now that we are looking at the three common driveway applications the density is determined by the Common Driveway Bylaw (a certain amount of structures). There were questions about the water and in particular there was a discussion about groundwater. There has been an assertion that we don’t have enough technical information in front of us. I gave the response that I had when I made my decision. There has been thoughtful and passionate testimony from the abutters that we don’t have all the technical information that we need. Let me go to the Board.”

Mr. Limbacher asked, “Are you suggesting that we vote tonight?” Mr. Fenton replied, “No, but we will vote it at some point. My point is that that is the revolving list that I have in front of me. Any comments? That does not preclude other issues such as screening and the retaining wall.”

Mr. Walter indicated that he agreed with Mr. Fenton and reminded him that the Board had, in the past, a detailed discussion about buffers. Mr. Fenton replied, “Yes, and we can continue to discuss items such as screening and buffers. They are saying that we will get everything that was offered in the Flexible.”

Atty. Ohrenberger said, “The question that I have – if the full Board is going to be here on March 22nd – we will continue it but what we would like to do is to close the hearing and have a vote that night. Mr. Harrington’s position is that Mr. Nyman has gone over this and we have addressed everything particularly at a meeting. There are no different issues. We specifically asked all the questions so at this point we are not inclined to go back and start over since there are no changes to what was previously approved. Two things - I will submit a maintenance agreement and a surety agreement. Mass Highway’s strong preference is to (obviously they don’t want to grant curb cuts for something that is never going to be used) so they like to see that you have a permit before they give curb cuts. You can condition it on us getting the curb cuts.” Mr. Fenton said, “I understand and I believe that the Board would be comfortable with that. So you are talking about a continuation to March 22nd. At that point you hope for a closure and a vote.” Atty. Ohrenberger replied, “Yes. I will work with Laura when she gets back. There should not be a lot of changes to the Decision. It will be mostly the same Decision.” Mr. Fenton said, “I could agree with that.”

Mrs. Chisholm asked, “Can we just check the Minutes to see if there was anything about groundwater issues.” Mr. Fenton replied, “Yes, but it clearly came up. There was an engineer here from your firm too and it may have been that he was making some of those answers. I know that he and Dave were engaged in a dialogue.” Mrs. Chisholm asked, “If it wasn’t talked about – then should we get a hydrologist in there? If ENSR has one then….” Mr. Fenton asked, “So where is the Board on this? This is an important question.”

Mr. Walter said, “We can ask Dave Nyman to clarify his report.” Mr. Limbacher said, “I will go back and look at my notes and at Dave’s reports. I will look at the design standards for a Common Driveway Special Permit. I will do that and I will be prepared to close and vote on March 22nd.” Mr. Walter said, “I am comfortable with that.” Mr. Fagan indicated that he agreed with Mr. Limbacher. Mr. Walter said, “We could get further clarification from Dave Nyman.”

Mr. Steve Bjorklund, 15 Capt. Daniel Litchfield Lane, “I have a question. I know that there is a regulation about not increasing storm water runoff. That is why we have detention basins. I am somewhat unclear as to where the regulation is. Even if there was an increase of the groundwater mounding – what is the regulation?” Mr. Fenton said, “I am happy to look for and find the language but as a Planning Board we can consider the health and welfare of the public. At a certain point I accept that mantle of responsibility. There has to be times where you would say that a very adverse impact on an abutter falls in the category of adversely effecting the health and welfare of the community.”

Mr. Bjorklund said, “The only reason that I bring that up is that we have a fair amount of detention basins in town and we have never had a hydrologist come in and look at them. I am just wondering if that is something that the Board will require now of every detention basin in town.” Mr. Fenton said, “My response is that this one is large and approximate to our water supply and there is an abutter that could be really close and could be adversely impacted. That is enough to explore an answer. I do not want to set a broad precedent where we would constantly be studying groundwater. I do not want to speak for the Board.”

Mr. Mirabito said, “I have been listening to the comments. We have been working on this project for over two years. You have to remember that we are in the Water Resource Protection District. When we do drainage calcs there are engineering standards that we have to follow. In addition to that you, the Town of Scituate, have your own regulations that cause additional restrictions on the storm water drainage. This basin, by your regulations, has to be at least 3’ above groundwater. That is the minimum separation. When you talk drainage you are not talking groundwater. Groundwater and surface water is apples and oranges. There will be no increase in the groundwater and there will be no impact on her or any of the other abutters. When you are talking about surface water it is from rain storms. On the uphill side we have stormceptors. A large majority of the site will stay wooded . The water from the roofs is clean water. The water coming off the roadways will be filtered by filtration ponds as well as with stormceptor units. The water in basin is from rain storm. Groundwater is in the ground all the time. The elevation of that pond is being maintained high. Because that water is high she has a higher groundwater level. If there is no rain for six months there will be no water in the basin. Number 2 – groundwater is in the ground all the time. If it rains or not she can have a problem with groundwater because of the elevation of the Pond. It is being maintained intentionally high. Before they built the Reservoir there was a little brook going through there. Because the water is high she has a much higher groundwater level on her property than she did prior to the Reservoir being built. That is just the nature of what happens. What this basin will do is to stop all the runoff from rain storms. It will catch that and send it away. The water in that basin is only there for a matter of hours. When we designed that we assumed zero infiltration. The soils out there, I can tell you from my tests, the upper levels of that soil are somewhat impervious in that they don’t let the water go through that fast at all. It is extremely slow. The water will come into that basin and stay there for a matter of hours. The purpose of basin is to stop the water. Without that basin it will run faster. We don’t ever use a hydrologist. For storm water drainage it is not required.”

Mr. Fenton said, “I think the Board understands your position and we want to see how we can answer this question. “

Mr. Dan Hoffman, 34 Stearns Road, said, “I think it is even more important now that you get a hydrologist because of that elevated basin. I think that would add even more to the groundwater.” Mr. Fenton said, “We can go back to Mr. Nyman and ask him to help us understand what we don’t know. Is there anything that we have not hashed over? In the end we have to bring in experts and review their testimony and we make sure it balances and then we get to the point where we say we have done our due diligence.”

Mrs. Judy Aronson, Cudworth Road, took a map up to the table and explained it to the Board. She noted an area of wetland flagging and said, “If they have to be that far away how can they put anything there.” Mr. Fenton said, “So you are showing us the old wetland flagging. I remember us having this question. Does anyone on the Board recall this? What did we do with that?” Mrs. Aronson said, “This is my mother’s land and I have seen it flagged way up here and not right along here. If they could draw in our property and show where the line is drawn and where their wetland is because it is like we are not even there.”

Mr. Fenton said, “What is the Board’s recollection of that? I think that clearly came up before.” Mrs. Brennan replied, “I thought that when it came up before Atty. Ohrenberger explained it.” Mr. Fenton said, “My recollection is that I thought you had a more current flagging.” Mr. Walter said, “This was done in ‘02.” Mrs. Brennan said, “It was done in ’02 and then it was done again. They questioned why there was a discrepancy. I do recall there was information but I do not recall what that information was.”

Mr. Mirabito said, “That lines follows and is almost parallel with the water’s edge there. There are no flags there. The thing is that the wetlands have to be reflagged every three years. If three years goes by the Conservation Commission requires you to go out and redo them. That was done on this site. I think the site she is talking about is an abutting site. Our wetland line was confirmed by the Conservation Commission two years ago.

The conversation continued regarding various wetland lines, where they were located, and when they were approved by the Conservation Commission. A gentleman from 137 Old Forge Road questioned why a particular wetland line was redrawn and he also asked if wetlands change every year. Mr. Walter referred to the line shown on Mrs. Aronson’s plans. He said, “If they did not continue the project up the hill it is anyone’s guess where it may have gone back then. I am saying that perhaps this could be a continuation of what is on this drawing.” Mr. Fenton said, “You could ask that question of Conservation because Conservation must have weighed in on that line.” Mr. Mirabito explained, “The Conservation Commission hired an outside consultant to walk that entire site. That was not done on the septic system plan.” Mr. Fenton said to Mr. Mirabito, “They did it for your site.” Mr. Mirabito agreed. Mr. Fenton continued, “I think that what the answer might be is that on this other plan it did not go that far. I am guessing.”

Atty. Brodsky read aloud sections of Planning Board minutes for September 28, 2006 regarding Mr. Nyman’s opinion on groundwater. See file.

Mr. Fenton said, “I think we have got the picture. Is there anything new and different? I am looking for a Motion to continue. We talked about a date of March 22nd. We have given ourselves some specific homework to do in the interim. It may be more the Board’s homework rather than the applicant. Check with ConCom on wetlands and there is the groundwater question. Bill has suggested, and I will too, that we should read the Common Driveway Bylaw to make sure it meets the density and square footage requirements.

MOTION: Mr. Walter Moved to continue the three (3) Common Driveway Special Permit Public Hearings for property located on Chief Justice Cushing Highway as shown on Assessor’s Map as follows:

Lots 1,2,3 Chief Justice Cushing Highway. Assessor’s Map 47-2-26A-26H.
Lots 4,5 Chief Justice Cushing Highway. Assessor’s Map 47-2-26A-26H.
Lots 6,7,8 Chief Justice Cushing Highway. Assessor’s Map 47-2-26A-26H to March 22, 2007 (9:00 P.M.) and to extend the time to file the Decisions with the Town Clerk to April 13, 2007. Mr. Limbacher Seconded the Motion and the vote was a unanimous vote in favor of the Motion by the 5 members present.

REVIEW OF HERRING BROOK MEADOW CH. 40B: The Board received a copy of memo to the Selectmen from Michael Clark of the Conservation Commission suggesting that a committee be set up to review the 40B plans. Mr. Clark asked for a representative of the Planning Board to serve on this Committee and Mrs. Brennan volunteered. The Secretary will inform Mr. Clark of the Board’s action.

ARTICLE 6 SPECIAL TOWN MEETING RE CHANGE IN PARKING REGULATIONS FOR MARINA: Mr. Fenton explained that this Article was being sponsored by the Selectmen and the purpose was to address the amount of parking that will be required at Marina Park. It was noted that should this Article pass it will also effect the parking at T.K. O’Malleys and other marinas in town. Mr. Limbacher said that Mr. John Cronin and other residents of Humarock have concerns about the effects of this article. The Secretary reminded the Board that a public hearing on this article has been scheduled for February 22nd.

Mr. Limbacher suggested that perhaps a way to handle the effects of this article would be to first create a definition of “marine park” and then say what the parking requirement would be for a marine park. If this idea was adopted it would remove future problems at other marinas such as T.K. O’Malleys and in Humarock. Mr. Fenton indicated that he liked Mr. Limbacher’s solution.

The Chair urged the members to think about this and to be ready to discuss it at the Public Hearing on Feb. 22nd

BYLAW ARTICLE 23 ANNUAL TOWN MEETING RE ZONING REVIEW

Mr. Limbacher said he did not remember discussing this article.. Mr. Fenton said that the Town Planner brought it up. This article would take funds remaining from a 1999 article for $30,000 to re-write the Subdivision Regulations and use it for review the Zoning Bylaw. There is approximately $10,000 remaining. Mr. Limbacher said that if the money is sitting there it should be used for something that is beneficial.

MOTION: Mr. Limbacher Moved to recommend support of Article 23 at the Annual Town Meeting March 3, 2007. Motion Seconded by Mrs. Brennan and the vote was a unanimous vote in favor of the Motion.

SIDEWALK COMMITTEE: Mr. Fenton explained that a Sidewalk Committee has been set up and Mr. Al Bangert is the chairman. The Committee is doing a town wide inventory of sidewalks. He said that he sent a memo to Mr. Bangert explaining what other towns do about this issue. Mr. Fenton said that sidewalks are critical near schools and transit areas. He said he would send the Board a copy of the information that he sent to Mr. Bangert.

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

ENSR ($660.86) for review of drainage at Barry’s Landing.

OFF SITE MITIGATION: Mr. Fenton urged the members to report all conversations they have outside the Planning Board meeting with developers. There was a brief discussion about impact fees in general. He said that some people feel that the Planning Board is taking bribes if they ask a developer to put up money for items e.g. sidewalks and then approve a project. Others see it as a form of extortion. He saw the need for a dialogue on this subject of developments in general e.g. their impacts on schools, roadways etc. He pointed out that many communities all over the country have bylaws in place to deal with things like impact from development and impact fees.

Mrs. Brennan questioned whether impact fees are permitted in Massachusetts. Mr. Fenton agreed that impact fees are not common in Massachusetts. Mrs. Brennan thought that the Attorney General has said no to the use of impact fees. Mr. Limbacher thought that the Town of Rehobath may have a way to handle impact fees.

Mr. Fenton said that Scituate would first have to have rules in place before they could ask a developer to put funds into an account for off-site mitigation. Mr. Limbacher agreed and said that a legal process must be set up in order to state how the town would obtain the funds and how the funds would then be dispersed. Each developer would have to be handled equally e.g. perhaps the amount of money could be based on the square footage of a project. Mrs. Brennan suggested that the Board could ask SHORE for a copy of their regulations to see how they get their fees and how they are dispersed.

Mrs. Brennan said it might be helpful to get input from some developers about impact fees.

Mr. Fenton asked that this issue be put on a future agenda for further discussion.

JACOB HATCH BUILDING 2 COUNTRY WAY: Mr. Fenton explained that Neil Duggan wants the Board to write a memo expressing the Board’s opinion on what the developer, Joseph Scanzillo, can do regarding the development of the third floor. Mr. Fenton said that Mr. Duggan agrees that under the existing Special Permit Mr. Scanzillo can build out the third floor and he would like a letter from the Planning Board indicating that that is the Board’s opinion. Mr. Fenton said that Mr. Duggan saw no need to quibble over the square footage. The Board agreed to write a letter to Mr. Duggan agreeing with Mr. Duggan’s position.

ANDERSON FUEL: The Secretary said that Anderson Fuel had an application before the ZBA to relocate their fuel tanks. Mr. Limbacher explained the proposed project. It is expected that Anderson Fuel would also be coming before the Planning Board. The Board decided to hold comments until Anderson Fuel appeared before them.

ACCEPTANCE OF MINUTES: Motion duly Moved, Seconded, and voted unanimously to accept the Minutes of September 14 and October 12, 2006.

MOTION TO ADJOURN: Motion duly Moved, Seconded, and voted unanimously to adjourn at 10:30 P.M.

Respectfully submitted,

Merrilyn O’Brien, Secretary

Mary Patricia Brennan, Clerk

Date Approved

Page 20 Minutes of February 8, 2007