MINUTES

FEBRUARY 22, 2007

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

Others Present: Mr. Paul Barry, Mr. M. Ball; Atty. B. Sullivan, Mr. M. Richardson; Mr. N. Murphy, P.E., Mr. S. McCarthy, Mr. Gaffey.

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

ACCEPTANCE OF AGENDA: Motion: Mrs. Brennan Moved to accept the Agenda. Mr. Fagan Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

Barry’s Landing Subdivision Request to Reduce Surety (Certificate of Deposit $51,000)

Mr. Paul Barry, the developer of the Barry’s Landing Subdivision, was present along with his engineer, Neil Murphy.

Mr. Barry said, “I would like to have all of the surety back. You got your report from the consultant. At the last meeting you wanted some assurance that the pond would not overflow. We stated that it has not overflowed. This has gone on for about ten years. We were almost there at the last meeting. There have been no complaints but you asked me to spend another $2,000 to let your engineer confirm that. He said, in his report, that he had no indication of any overflow of this pond over the years. With that in place I request that you return all of my money.”

Mr. Fenton said, “Just to be clear. Mr. Barry is asking for the return of the full $51,000. This has gone on for some time. Most recent and most relevant is Mr. . Nyman’s report of January 2007. Comments from the Board?” See file for a copy of Mr. Nyman’s report.

Mr. Limbacher referred to Mr. Nyman’s report and read portions of it aloud and asked if there were As Built Plans.

Mr. Barry replied, “I have seen the settlement. That settlement is very minimum - there is likely not 2 gallons of water. You see that sort of thing in catch basins throughout the town. Ours is all in place with a very minimum drop in it. I would not want to dig it up and make a change to that. The issue was – does the pond overflow. Your engineer says that it does not overflow. Neil Murphy, the engineer for this project, is here tonight and we both believe that there are As Builts. There has been an on-going battle for ten years.” [Mr. Barry reviewed some of the history of this project.]

Mr. Fenton asked, “Is there a disagreement about the As Builts? Why is it not clear? Our most recent correspondence from DPW does not confirm that there are As Builts. You would assert that the As Builts are done.” Mr. Neil Murphy, P.E. said, “I know we set the bounds. That goes way back and I did a plan to show those. I think we did the As Builts. This is the first time I heard the question.”

Mr. Fenton said, “The As Builts may be an open question. I went to the site just to make sure that I understood it. I can see the settling he is describing. You can decide whether that is an issue or not. Mr. Barry said that there is no need to do more engineering on that. Dave Nyman does describe, in his letter what he would propose.”

Mrs. Brennan said, “I don’t think he said that it did not flood what he said was that he did not observe it flooding. He said he did not know how it would respond to a hundred year storm. He said it was likely that it discharges into the ground, but he thought we should check with the subdivision residents. I don’t think that we have done that.”

Mr. Fenton asked if there were any abutters present who could offer some insight into this question. It was noted that there was no reason why the abutters would have been notified of this agenda item. Mr. Barry explained that the person who would be most effected by any flooding would be his son who lives at Barry’s Landing. In response to a question from the Chair, the Secretary said she had no recollection of anyone from the subdivision coming in and complaining about problems in the subdivision.

Mr. Fagan said, “I drove down there. I saw a depression but I did not see any standing water.”

Mrs. Chisholm asked, “When we went back to Dave Nyman did we only ask about the overflowing of the pond?” Mr. Fenton said, “I think so and based on his comments Dave seems to think the basin is serving its purpose. That is how I read his notes.”

Mr. Limbacher said, “Given all the rain we had earlier this year if there was a major problem we would have heard about it. I would suggest that we could hang on to some of the money for the As Builts and give the rest of it back. The road is private road and if there is a problem they will have to fix it.”

Mr. Fenton said, “So Mr. Limbacher is proposing a way forward that says to hold an amount of money just to make sure that the As Builts get done. As soon as we have documentation that that is done we can turn that money over.” Mr. Murphy said he would check tomorrow to see if the As Builts are done.

Mr. Limbacher said, “My thinking is that I would vote to release it all except for the money for the As Builts. Once we get confirmation from the DPW that the As Builts have been submitted then they can get the money back.”

MOTION: Mr. Limbacher Moved to release $45,000 of the surety being held for completion of the Barry’s Landing Subdivision (Certificate of Deposit $51,000) and retain the remaining $6,000 until the developer, Mr. Barry, provides proof that the As Built Plans have been submitted to the DPW. Upon receipt of the As Built Plans the remaining $6,000 will be released. Mr. Fagan Seconded the Motion and the vote was a unanimous vote in favor of the Motion. Mr. Fenton, Mr. Limbacher, Mr. Fagan, Mrs. Brennan, and Mrs. Chisholm (Alternate Member) voted on the Motion.

FORM A PLAN 92 AND 100 T. CLAPP ROAD. OWNER/APPLICANT: MICHAEL BALL, TRUSTEE BLUE WATER NOMINEE REALTY TRUST

Michael Ball, the applicant, was present. He showed the Board proof that the tax bills for this property had been paid. Mr. Fenton reviewed the report from the DPW.

Mrs. Brennan asked Mr. Ball if he planned to rip down the houses on the site. Mr. Ball said that the house at #100 Clapp Road would remain the same. Some changes would be made to the house at #92.

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 92 and 100 Thomas Clapp Road. Plan prepared by Ross Engineering Co. Inc. for Owner/Applicant: Michael Ball, Trustee Blue Water Nominee Realty Trust. Plan dated February 6, 2007. Mr. Fenton, Mr. Limbacher, Mr. Fagan, Mrs. Brennan, and Mrs. Chisholm voted on the Motion.

FORM A PLAN 671-677 COUNTRY WAY

OWNER/APPLICANT: J. S. BARRY CONSTRUCTION LLC

Mr. Fenton said that the Board had discussed Form A Plans for this property on other occasions. See Minutes of January 11 and January 25 for details.

Atty. Brian Sullivan represented the applicant. Mr. Michael Richardson was present on behalf of the applicant. See sign-in list for names of others present for this meeting.

Atty. Sullivan submitted copies of Assessor’s records for the property and he said, “As the Board may recall this is the third iteration of this plan that has come in front of you folks. The original Form A application called for four lots based on the lots currently having four dwellings. At the last hearing, which was the second hearing, the Board requested that the applicant (who could not be here this evening, but Mike Richardson is here in his place because John is on vacation with his family this week) talk to the neighbors. They went back to the neighbors. The neighbors would like to see less density. They talked to the neighbors about three lots versus four. The sense they got from the neighbors is that the neighbors want to see nothing more than one single family house on the lot. The question in front of the Board is – do they (the 3 of the 4 dwellings on the property) pre-date the adoption of Subdivision Control in the Town of Scituate? I have given you the Assessor’s records going as far back as we could locate. They show that four of the dwellings were constructed in or around 1900. This conforms to my personal knowledge of the history of the property. I was the attorney for the estate that owned the property prior to it being sold to Mr. Barry. The question that has come up from the abutters – is that they were abandoned, that they were chicken coops, they were not dwellings. If you look at the definition of ‘dwelling’ in the Town of Scituate Bylaw – a dwelling is a structure that was designed and constructed as a residence. I will read the definition to you. ‘Any building or part thereof erected or used for occupancy as a place of continuous residence for an individual or family or designed for such occupancy…’ Clearly these structures were designed for occupancy and going back as far as we can they have been taxed as residences. We are now not asking for four lots but rather three lots. Again, what we are asking for is for endorsement of the Form A Plan. Obviously, as you know, your endorsement does not say that it complies with zoning. In order for these dwellings to be built they will have to go to the Zoning Enforcement Officer (ZEO) and to the Zoning Board of Appeals (ZBA). If you go back to Neil’s Letter he says that our client is entitled to a Form A endorsement.”

Mr. Fenton read aloud the last paragraph of the letter from Neil Duggan, ZEO, dated January 24, 2007. See file for a copy of this letter. Mr. Fenton said, “He does say that in his opinion the applicant is entitled to a Form A endorsement. So you are making the case for the three lots and you say that you have got access from Country Way and for Lot 2 from Kelton Road according to the plan itself.” Atty. Sullivan replied, “Yes, according to the plan. Ultimately the plan is to access the three lots from Country Way.”

Mr. Fenton added, “Our approval of the ANR will have to be based on access for the lots.” Atty. Sullivan said, “There is access over Kelton Road.”

Mr. Fenton said, “So that is kind of a summary of where the applicant stands. Are there questions from the Board?”

Mr. Limbacher asked, “So you are suggesting that under Section 610.4 you can subdivide this?” Atty. Sullivan replied, “That is correct.” Mr. Limbacher added, “Based on the definition of dwelling.” Mr. Fenton said, “And also that they pre-existed zoning.” Atty. Sullivan replied, “That is correct.”

Mr. Fenton said, “They are making the case that these are dwellings whether inhabited or not in accordance with the definition of dwellings in our Bylaw. To be clear I will say it again – they are asserting that they were built as dwellings and given the definition in our Bylaw whether inhabited as dwellings or not they are asserting that they were taxed as dwellings (see the tax records) and as such because they were dwellings previous to zoning control they therefore meet the criteria of pre-existing dwellings and therefore this should be voted. That is their position. I am not trying to put words in your mouth.”

Atty. Sullivan said, “I would submit that there are presently four dwellings on the property and there used to be five. There are currently four and we are asking for three.”

Mr. Fagan said, “It shows plumbing – lave and sink.” Atty. Sullivan replied, “That is correct. Also, there were representations made at the last hearing, according to the draft minutes, that they did not have plumbing or electricity and that is incorrect. They were designed as residences and they have been used seasonally as residences. I don’t know that they were occupied year round as residences. Example – if you have a cottage on the beach that does not have heat because you leave it during the winter months you don’t abandon the use.”

Mr. Fagan asked, “When were they last occupied?” Atty. Sullivan replied, “I don’t have that information.”

Mr. Fenton asked Mrs. Chisholm if she had questions or comments. Mrs. Chisholm questioned whether the houses were ever inhabited as dwellings.

Atty. Sullivan replied, “They were inhabited and they meet the Town of Scituate Zoning Bylaw definition of dwellings. They were not designed as sheds if you look at the Assessor’s records. There are sheds and other structures on the property. We are not asking for those; we are asking for the three residences. They were designed as residences.

Mr. Fenton said, “Obviously it puts some burden of some interpretation on us.” Mr. Limbacher said, “They are suggesting that these buildings were used for occupancy as a place of residence, but I would suggest that they have not been inhabited for a period of time. I could understand if for a year they were not used or for two years they were not used, but they have not been used for an extended period of time. At that point, at least in my mind, they are no longer dwellings. They need to be dwellings to be considered under S610.4.”

Atty. Sullivan responded to Mr. Limbacher, “To your point – the question is were they designed for such occupancy and obviously they were. They were never altered so that they were modified or remodeled so that they were not designed as residences. They were not turned into barns.” Mr. Limbacher responded, “Nor were they maintained as residences.”

Mrs. Brennan said, “They were used as warehouse or storage. I had the pleasure of being taken through them sort of because you could not get through them because they were chock full of antiques.” Atty. Sullivan replied, “Absolutely, the previous owner did use these buildings to store furniture. There is no question about that and we are not disputing that. What we are stating is that the buildings were designed and built for use as residences. That use was never extinguished. The owner could have gotten a building permit, gone and fixed these things up and put people in them. That is not what happened but that is what could have happened. It is not as if she took a shed and turned it into a house. There were four residences on the property that were used as residences for a number of years and that use was never extinguished and she was taxed on that basis and paid those taxes as residences. The use was never extinguished.” Mr. Fenton Mr. Fenton said, “I think your argument is clear. Does everybody have an understanding of the case?”

Mrs. Chisholm said, “Up here it says a multi-use residence. That does not mean multi residence. That does not mean multi residences it just means multi use, doesn’t it? Also, none of them had heat but one had central air conditioning.” Atty. Sullivan replied, “One had a coal stove. That is not evidence that it is not a residence. There are a lot of folks who have cottages that don’t have heat and they are residences. They are used intermittently. If they don’t use the cottage for two years it does not extinguish the use.”

The Board looked at some pictures of the site. Mr. Fenton asked the Board, “Do you need more information? Clearly a judgment/interpretation is being asked for. Are there specifics things that you want to hear because I am going to open it up for public comment. This is important. I am not looking for opinion so much as substantive information that can inform us regarding the decision that we have to make. We have to interpret the reality of this as best we can under both the letter and intent of the law. We are asking – were they designed as residences? Can we interpret that as such and can we allow this to be broken into three. If they pre-existed zoning then there is no doubt in my mind that this is a valid ANR Plan.” Atty. Sullivan said, “I don’t think anyone disputes that they pre-existed zoning.” Mr. Fenton said, “As residences – we have to interpret them as dwelling units. There is no doubt that all the structures pre-existed zoning. I will open this to the public.”

[Note: Mr. Limbacher pointed out that there was a Public Hearing on a zoning article on the Warrant for the Special Town Meeting scheduled to begin at 8:00 P.M. He suggested that the Board finish the discussion on the Country Way ANR before going on to the Public Hearing. Mr. Fenton explained, for information, that the sponsors of the article, the Board of Selectmen, have asked that the article be indefinitely postponed.]

Mr. H. McLellan, 17 Mann Lot Road, said, “We are not here to prevent Mr. Barry from making a profit on his investments. What we are here for is to maintain the integrity of our neighborhood. If we allow them to put three or four residences on 31,000 S.F. of property it will ruin the integrity of our neighborhood and town. You should look very carefully at a precedent you might set here if you allow people to do this kind of thing. It is a 31,000 S.F. lot. I know that Mr. Sullivan represented the previous buyer for this property and I believe it was several weeks prior to the Planning Board meeting last year that they had an electrician come in and run extension cords from one shed to another so that it would look like it had electricity. These are not dwellings they are sheds and barns. There is only one house on the property. I have lived here for twenty-five years and I have never seen anyone live in any of these sheds. So I would like the Planning Board to look at this with a common sense approach and realize what we are facing.”

Mr. Joseph Bonomi, 8 Kelton Road, said, “I have lived next to that property for 50 years. I have never seen anyone living in any of the sheds. She distinctly moved them on the property to store furniture and wood. That is all she has done for the last fifty some odd years. There was no electricity, no plumbing, no heat in any of the buildings until the last developer had it under agreement. He went and strung a cord to each building to light up the building so someone could look at it.”

Mr. Fenton said, “I just want to make it clear - your testimony is that you have lived there for 50 years.” Mr. Bonomi replied, “Yes, I have lived right next door.” Mr. Fenton added, “So you have not seen anyone dwelling in any of the other structures.” Atty Sullivan said, “I can address that. Electricity does run, and I have personal knowledge, that electricity does run to at least three of those four buildings. The electrical service has been there for years. Previously the property was subject to a purchase and sales agreement and was leased out to a developer named Joe Joyce. As far as Joe Joyce or Joe Joyce’s electrician stringing up whatever – I have no knowledge of that.”

Mr. Fenton said, “I want to be clear. I don’t know what happened with the last transition/sales whether the people strung light bulbs or not or if there was electricity or not. Quite honestly that is not nearly as substantive to my thinking, and I will check the Board here, as to whether or people lived or not in any of the measurable history. In other words, reconstructing if they were truly dwellings or not is a pivotal piece and is more important to me and I think for this Board. So don’t dwell on the electrical.”

Atty. Sullivan said, “To the second aspect of Mr. Bonomi’s comments – what he has observed over the years I have no knowledge of or what he has seen or has not seen. I do know that based on my knowledge of the property and what I have been told – these buildings, as Mr. Bonomi has said, were moved to the site. They were not constructed on the site. Jessie Litchfield, the founder of the Bayfield Chain (Henry Turner Bailey), did work for folks and sometimes in lieu of payment he would accept an out building on their property. He put these different houses on his property. This was a way he used to supplement his income. Often times he would rent them out to transient labor. For years there were several families who lived on the property and worked for Allen Wheeler. Most of them did not drive or none of them drove.” Mr. Bonomi said, ‘For fifty years they have not been used as dwellings.”

Mr. Mike Geiger, 672 Country Way, said, “I have lived at 672 Country Way for approximately 26 years. I used to do a lot of work for Dorothy Murch to help her out. I was in every one of those buildings. There was no running water in any of those buildings. There was no electricity in any of those buildings. The electricity was brought in, as Joe Bonomi said, I think to probably deceive some of the members of the town. I think given the size of the property and what they want to do to the property – you are setting a very dangerous precedent here if you allow anybody who has a shack on a building (somebody may have slept in it for a day or two) if you consider that a dwelling. I think you could have that situation pop up all over town.” Mr. Fenton replied, “I think the Board understands the scale of the issue here and indeed we do not want to set a precedent.”

Mr. Limbacher said, “There is one issue before the Board and that is the ANR – can the applicant divide the lot into three pieces.” Mr. Fenton added, “Make sure you are clear – there is by no means a building permit here. This says that the division can be drawn on the map. The applicant will still have to go to the ZBA and the Building Inspector in order to get building permits before he could proceed with any kind of construction. Our questions are: were they pre-existing structures? were they built as dwelling units?”

Mr. Bonomi asked, “If you Form A these lots what rules and regulations go along with the Form A? What requirements do they have to meet? I Form A’d my lot and there was frontage requirements and everything to get a Form A.” Mr. Fenton replied, “Generally it is frontage and access. The case being made here is that the access for Lot 2 is on Kelton Road. Regarding size, it is all a matter of the existing units and being allowed to divide that.” Mr. Bonomi asked, ‘What about the access issue on Kelton Road?” Mr. Fenton said, “I was actually going to ask that question again. Were there any other comments on the dwelling question?”

Mrs. Brennan said, “I just read quickly through the material that Atty. Sullivan gave us just now. It appears to me that only one building shows electricity. My question – just because a building was used as a dwelling and if there were no toilets and if there really wasn’t electricity – in other words if the town did not take note of a situation that should not have been allowed to exist – do you still get to say that that was a dwelling?” Atty. Sullivan said, “These pre-dated all of that.” Mrs. Brennan said, “I understand that they have been there.” Atty. Sullivan said, “You are saying that the town failed to do something? When do you think this failure manifested itself?” Mrs. Brennan continued, “You say that Allen Wheeler’s workers were living there. It is my understanding that if a place does not meet Board of Health requirements it could be condemned or they should be asked to leave. Looking at these they don’t look like they meet proper standards of living – no toilets, no electricity.” Atty. Sullivan said, “Under Title 5 regulations you can have an outhouse. As far as electricity, I know from personal experience that three of the dwellings have electricity. I don’t know about the fourth. There are a lot of cottages that don’t have heat. Again, I am not passing judgment on how people live. What I am saying is that people live differently. These dwellings were erected or placed on the property. Just because they are not up to today’s standards or they don’t comply with current regulations or Health code does not mean that they are not dwellings. They were and they have been.”

Mrs. Brennan said, “I understand that they were dwellings and I understand that people lived there. If the town should have but did not say that they were not livable – obviously, obviously, they are not livable so how can they be referred to as a dwelling?”

Atty. Sullivan replied, “Look at the Scituate definition of a dwelling. The property owner could go out and get building permits and restore these properties to their previous condition.”

Mr. Fenton said, “Let me check that. So your assertion would be that they could go and get a building permit to do electrical upgrades and things like that and restore them to a livable condition.” Atty. Sullivan said, “Yes. We have Title 5 approved septic systems for these structures including the retail space.”

Mr. Limbacher said, “The question is in my mind and I go back to the definition. [Mr. Limbacher read aloud the definition of a dwelling.]” Mrs. Brennan said, “I say that they could not have been used.” Mr. Limbacher continued, “I would not argue with that.”

Atty. Sullivan said, “Again I will draw your attention to ‘or designed for such occupancy’. They were designed as dwellings and the design has not been changed. It has not been modified.”

Mrs. Chisholm asked, “Do the dwellings have to be built at and on the property? Someone said that they had moved them.” Atty. Sullivan replied, “Three of the four were moved to the site (or four of the five). That does not mean it is no longer a dwelling. Just because they were moved there is not a problem. They were not placed there temporarily they were placed there permanently.”

Mr. Bonomi said, “Getting back to my question about frontage requirements and that type of thing. The one on Kelton Road – how much frontage does he have? What about the wetlands? How are you going to give him frontage on wetlands? Conservation will not like that.” Mr. Fenton replied, “I think that the assertion is that there is a portion that is not wet if I am reading the drawings correctly. They can access over a portion of it.”

Mr. Bonomi asked again, “How much frontage does he need?” Mr. Fenton said, “Well – fifty foot minimum.” Mr. Bonomi said, “That is with twice the lot size isn’t it.”

Mr. Fenton replied, “This is a pre-existing condition, right. That is the issue.” Mr. Bonomi said, “So you are going to make three non-conforming lots out of a single residence.” Mr. Fenton responded, “Again, we are not saying what he is building there. I think you have to be clear on that. It pre-dates Subdivision Rules. That is the issue.”

Mrs. Brennan said, “This does not have to meet the same criteria that Mr. Bonomi had to meet because they were pre existing.”

Mr. Geiger said, “I think it is important to go back to the question of continuous use. We have elderly people in the neighborhood who will say that no one has lived there for fifty years or more.”

Mr. Fenton said, “I am going to go so far as to say that I suspect that this Board accepts that these buildings have in no means been in continuous use. The question is how we interpret the paragraph. [Mr. Fenton again read aloud the definition of dwelling.]

So that is what a dwelling is. The question is – do we feel that these structures meet the letter and intent of that definition? The Town adopted the Subdivision Regulations in 1947.”

Mr. Limbacher said, “So Mr. Bonomi is suggesting fifty plus years. That puts it right on the cusp or whether they were or were not.” Atty. Sullivan said, “Fifty years would bring us to 1957.”

Mr. Thomas Clougherty, 17 Kelton Road , said, “The plan is for three lots and one is off Kelton Road. My concern is that we maintain that road as a private road by ourselves. We paid to have that road repaved. If you approve this plan will your approval say it has to have access off Kelton Road?” Mr. Fenton replied, “This does not insist that access must be off Kelton Road. They could pursue something called a common driveway off of Country Way.” Mr. Limbacher said, “He could come in off Country Way. I think he has fee in the road.”

Atty. Sullivan said, “Ultimately he will go to the ZBA to access the two lots from Country Way with a common driveway. We have reduced it from four lots to three.”

Mrs. Chisholm asked, “Is there reason why the developer can’t just do just one nice house instead of three or four?” Atty. Sullivan replied, “He has looked at this project and it is the applicant’s position that this is the project that works best for the applicant.

He has an average of 10,000 S.F. per lot which is the average of the majority of the residences in this town. Some of the more expensive areas of town have 10,000 S.F. zoning. I live in a 10,000 S.F. neighborhood with a smaller than 10,000 S.F. lot and I do not consider my house or my yard to be an eyesore or a detriment to the rest of the neighborhood.”

Mrs. Chisholm said, “When you look at this now it looks cluttered and by putting three houses on it look more so.” Atty. Sullivan said, “I disagree. There are several structures on the property now. The lot coverage in terms of what is there now and what will be proposed will be reduced by at least 30%. The lot coverage will be significantly reduced and the density will be reduced. Again, what we are proposing is a residential use and not a business use. When the previous property owner was in front of the ZBA the abutters appealed the finding of the ZBA that this was a pre-existing non-conforming use.”

Mr. Bonomi asked, “Does anyone have proof that people lived there prior to 1947?”

Mr. Geiger said, “Mr. Sullivan said that the 10,000 S.F. lots are not offensive to him but I just want to remind him that this particular part of town is 20,000 S.F. zone. What is being proposed is three homes which would have a little over 9,000 S.F.”

Mr. Harry McLellan, Mann Lot Road, said, “I think in the spring time you might want to deduct some of that square footage because there is water running down the hill.” Mr. Fenton said, “There is a small portion of wetlands.”

Mr. Fenton asked, “Board members do you want to comment more about it? Do I have a Motion to endorse?”

Mr. Fagan said, “It is hard to vote on it. Brian has come up with some good information.” Atty. Sullivan said, “I would submit it is not solely continuous use it is ‘as designed’.” Mr. Fagan said, “As a summerhouse that is only used one or two months of a year.” Atty. Sullivan said, “Again, the Assessor’s have been on the property and they have assessed them as residences. They delineated between the sheds, the barns, the garages, and the residences. They were designed and used for many years as residences.”

We are not saying that they have been continually used.”

Mr. Limbacher said, “It is the owners option to say…I have a shed, or a house.” Atty. Sullivan responded, “I respectfully disagree. When the Assessors go out to a property they don’t take the residents word about it. They have never voluntarily surrendered the status of those properties as residences.”

Mrs. Chisholm asked, “When did the house sell?” Atty. Sullivan replied, “The property sold in September this past year.” Mrs. Chisholm said, “This tax bill is from 2005. Would it be possible to see an older tax bill?” Atty. Sullivan replied, “I gave you all the old tax bills with the information I submitted.”

Mr. Fenton said, “Is any member of the Board interested in moving to approve, or endorse I should say?” [There was no Motion to endorse.]

MOTION: Mr. Limbacher Moved to NOT Endorse the Form A Plan for 671-677 Country Way as Approval Under the Subdivision Control Law Not Required based on the fact that the Planning Board does not have sufficient evidence that the structures on the site were, in fact, designed for and used as dwellings previous to 1947 (the establishment of zoning regulations) and as such the Form A Plan does not qualify under Section 610.4)

[Form A Plan of land in the Town of Scituate located at 671-677 Country Way. Plan dated February 14, 2007 prepared for J. S. Barry Construction. LLC by Cavanaro Consulting, Inc.]

Vote: Mrs. Brennan Seconded the Motion to NOT ENDORSE the Form A Plan. The vote was a unanimous vote in favor of the Motion. Mr. Fenton, Mr. Limbacher, Mr. Fagan, Mrs. Brennan, and Mrs. Chisholm voted on the Motion.

Article 6: Amend Section 760.6 of the Zoning Bylaw, Table of Minimum Requirements to change

The number in the ‘Number of Spaces Required’ for the use ‘Marina’ from 1.5 spaces per boat capacity to 1 space per boat capacity

Mr. Fenton opened the Public Hearing. He read the letter from the Board of Selectmen, the sponsor of the Article, saying that the Selectmen will Indefinitely Postpone this Article at the Special Town Meeting. He said that Article 6 proposes to change the number of spaces for marina parking from 1.5 spaces per boat capacity to 1 space per boat capacity. He said he understood there was a lot of discussion at the Water Study Committee about this. He asked for a Motion from the Board to go along with the sponsors of Article 6 and recommend that the Article be Indefinitely Postponed.

MOTION: Mrs. Brennan Moved to close the Public Hearing regarding Article 6 [Amend Section 760.6 of the Zoning Bylaw, Table of Minimum Requirements (Marina Parking)] on the Warrant for the Special Town Meeting within the Annual Town Meeting commencing March 3, 2007. ] Mr. Fagan Seconded the Motion and the vote was a unanimous vote in favor of the Motion. Mr. Fenton, Mr. Limbacher, Mr. Fagan, Mrs. Brennan, and Mrs. Chisholm voted in favor of the Motion. Mr. Walter was absent.

MOTION: Mr. Limbacher Moved to recommend that Article 6 of the Special Town Meeting within the Annual Town Meeting be Indefinitely Postponed.

Mr. Fagan Seconded the Motion and the vote was a unanimous vote in favor of the Motion. Mr. Fenton, Mr. Limbacher, Mr. Fagan, Mrs. Brennan, and Mrs. Chisholm voted in favor of the Motion. Mr. Walter was absent.

INFORMAL DISCUSSION WITH MR. N. MURPHY, P.E. REGARDING POSSIBLE DEVELOPMENT OF GAFFEY PROPERTY CRICKET CIRCLE

Mr. Neil Murphy and Mr. S. McCarthy from Murphy Associates were present along with Mr. T. Gaffey, the property owner.

Mr. Murphy showed the Board an approved subdivision plan for the area which was approved back in the 1950’s. This plan illustrates what exists on the ground today. Mr. Murphy described in detail the location of the roadway layout and the actual location of the road.

Mr. Murphy showed the Board what Mr. Gaffey would like to do with the property.

Mr. Limbacher asked, “So you would be coming in with a three lot subdivision?” Mr. Murphy replied, “No, it would be just one more lot.”

Mr. Fenton asked, “Would you propose it as a modification to a subdivision plan?” Mr. Murphy replied, “That is why I am here to talk to you. I have never seen one like this in my life.”

Mr. Fenton said, “I will summarize. What happens is that the current roadway actual leaves the road layout that was approved by the Planning Board back in 1950’s. Currently there are only two lots there of a size roughly 28,000 S.F. and 35,000 S.F. They are asking whether an approach might be to modify the layout to align with where the road is now – not to move the road but to modify the layout and then reallocate the space to create a third lot to the south of the existing two and to the south of the current tear drop. The question is how best to proceed. Would it be a modification to an existing plan which in fact the Planning Board approved at some point or is there another way to go at this?”

Mr. Murphy showed the Board where the septic system would be located.

Mr. Fenton said, ‘Right now there is not a lot of asphalt. We would prefer not to see more asphalt.” Mr. Limbacher said, “If we amended the subdivision it would have to be done to current standards.” Mr. Murphy said he would ask for all kinds of waivers. Mr. Fenton added, “You will have to have room to get the large fire trucks in there.”

Mr. Murphy said, “The fire trucks can get in there now.”

Mr. Fenton asked Mr. Gaffey if he had spoke with any abutters about his plans. Mr. Gaffey explained his family history with the land and pointed to property owned by his mother, sister, and cousin. He noted the property owners he had spoken with and the ones he had not spoken with. He also explained which property owners use the circle.

Mr. Limbacher offered some examples of what could be done. He said, “You could come in and ask for a modification of the subdivision to change the roadway. Once you change the roadway you have created the three lots. The lots would all comply.

If you construct it as originally designed that would be a modification of the subdivision. Then your next step would be to come in with three Form A’s,

or you could come in with a three lot subdivision.”

Mr. Fenton said, “Your plan would allow you to keep the asphalt as it is and just realign the road layout.”

Mr. Murphy again explained the approved subdivision plan and showed the Board what was actually built. Mr. Limbacher said, “So you would want a modification of what was actually as built to what the plan was. The Planning Board would be hard pressed to say we would not approve it. We approved the plan once so why would we not approve it again. Once you get that you can Form A the lots”

Mr. Fenton said, “That would mean that they would rebuild the road.” Mr. Murphy said, “There is no drainage at all, nothing.” Mr. Fenton said, “I would like to see a plan that reflects the road as it ends up being built and ask for the appropriate waivers. We would likely grant the appropriate waivers. There may be a need to do some physical modification on the ground for public safety.” Mr. Limbacher said to Mr. Fenton, “So you are suggesting that they come in for a brand new three lot subdivision.”

There was a discussion about the amount of pavement and the area needed for the fire trucks to turn around. Mr. Fenton again said he would like to keep the asphalt to a minimum.

Mr. Fenton summarized the discussion. He said, “We are saying that one option is come in for a modification of the existing subdivision and change the road and rebuild the road to reflect what the actual layout is. Right now the roadway goes outside the layout. Another option is to come in with a subdivision modification and change the layout to reflect where the road got constructed with an easement to account for the end of the tear-drop. Then that leads you into a Form A to break off the new third lot. The question then is where is the third lot septic. Does it turn out that it has to be on one of the existing lots? Shaun will show us where that is. That is some cause for concern.”

Mr. McCarthy showed the Board a plan showing the topography of the area and he and Mr. Murphy explained the location of the existing septic systems and explained what might happen with the septic system for the third lot. Mr. Murphy said, “We could make one system a shared system.” Mr. McCarthy mentioned some of the current Health regulations re septic systems.

Mr. Fenton. said, “So the direction I am hearing is – think about the modification to reflect the current conditions of the existing roadway and ask us for the waivers. There is sensitivity on this Board to not creating a lot more pavement and a lot more disturbance. You should go to the Fire Department and DPW to make sure they don’t have a problem with then. Then proceed with a Form A for the third lot.” Mr. Murphy said, “We would go through them both at the same time.” Mr. Limbacher added, “Your argument will be that this is the way it was supposed to have been built the first time.” Mrs. Brennan urged Mr. Gaffey to contact all his neighbors as quickly as possible so they will know what is happening.

TOWN MEETING/SPECIAL TOWN MEETING ACTIONS:

The members decided that Mrs. Brennan would speak to Article 6 (Marina Parking) of the Special Town Meeting; Mr. Walter or Mr. Limbacher would speak to Article 15 (Revolving Account); and Mr. Fenton would speak to Article 23 (Redoing Zoning Bylaw) of the Annual Town Meeting.

MOTION: Mr. Limbacher Moved to recommend support of Article 15 of the Annual Town Meeting. Mrs. Brennan Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

HUMAROCK ZONING: There will be a meeting in Humarock on Monday morning, February 26, at 9:00 A.M. in Humarock to do a walk through of the area with the Klopfer Design Group and some of the residents of Humarock. An Agenda will be posted.

ACCEPTANCE OF MINUTES: Mrs. Brennan Moved that the Minutes of January 25, 2007 be accepted as submitted. Mr. Limbacher Seconded the Motion and the vote was a unanimous vote of the members present.

MOTION TO ADJOURN: Motion duly moved, seconded, and voted unanimously to adjourn at 9:10 P.M.

Respectfully submitted,

Merrilyn O’Brien, Secretary

Mary Patricia Brennan, Clerk

Date Approved