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Scituate Planning Board, May 8, 2008
SCITUATE PLANNING BOARD

MINUTES

MAY 8, 2008

Members Present: Mr. Walter, Mr. Limbacher, Mr. Fenton, Mrs. Chisholm, Mr. Vogel, Mrs. Brennan (Associate Member)
Others Present: Ms. Harbottle, Town Planner; Mrs. M. Doherty, Atty. M. Bliss, Mr. P. Mirabito; Mr. D. Smith, Mr. A. Beale, Mrs. Meissner .
See sign-in list for names of others present at this meeting.

ACCEPTANCE OF AGENDA: Move to accept the Amended Agenda. (added Town Planner Update to the Agenda). Motion made by Mr. Limbacher, Seconded by Mrs. Chisholm and voted unanimously.
Mr. Walter welcomed Robert Vogel, the Board's newest member, to the Board and he also welcomed Mrs. Brennan as the Board's new associate member. Both Mr. Vogel and Mrs. Brennan were elected by the townspeople at the April 26th town election.

Old Business, New Business, Correspondence, Administrative Items, Town Planner’s Updates, Acceptance of Minutes(June 14, 2007, July 12, 2007, November 29, 2007, April 24, 2008)
TOWN PLANNER UPDATE
STORMWATER BYLAW: Ms. Harbottle said, "Before Town Meeting I had been working on the Stormwater Bylaw regulations and I should have them done in a couple of weeks. I will give them to you and other departments and see what everyone has to say about it." Mr. Walter asked, "How does that effect us immediately?" Ms. Harbottle replied, "Until you set the regulations you are not effected. You need to hold a public hearing before you vote on the regulations.”
HARBOR IMPROVEMENTS: Ms. Harbottle said, "I have been working with Mark Patterson, the Harbormaster, on improvements in the Harbor. One thing we have been discussing is signs e.g. ‘Welcome to Scituate Harbor’. There could be one at Beaver Dam Road/Front Street area and the other at the intersection at Edward Foster Road. We are going to the Selectmen’s meeting on Tuesday night to discuss this. The signs will be paid for by Dick Ladd, son of Bob Ladd, a past member of the Planning Board.   Bob Ladd was responsible for the Harbormaster's building and Dick Ladd is responsible for the walkway around the building.    Dick Ladd is very interested in a Harbor walkway. They may have to move some of the parking in order to do the walkway.    I would like to get an overall design – perhaps by the Cecil Group to do it. We may not have the money for that so we may have to get volunteers to help out." Ms. Harbottle described where a new walkway could be placed.
Mr. Walter asked if the walkway could continue over to the Marine Park and if there would be a boardwalk?    Ms. Harbottle said, "We have talked about it e.g. having a bridge over the Satuit Brook and going through the Conservation land. If we had that it would be helpful when we went to the State to get grant money for the Marine Park.”
VILLAGE AT SOUTH RIVER: Ms. Harbottle said, "I gave you correspondence on that. The ZBA is going to finalize their Decision next Thursday. The Special Permit they have in draft form came from Walter Sullivan. It says that because the Bylaw was passed at Town Meeting this project has no significant impact on the neighborhood because the town was willing to adopt this bylaw. However, it does not address a lot of aspects of that Bylaw which would have been Conditions on a project e.g. having septic system with treatment in it, public benefit, design standards, parking standards etc.   Some of these things may be minor things but I think should be addressed as Conditions by the ZBA. I am just wondering if you are interested in writing a memo to the ZBA to somehow address some of the items.”
Mr. Walter asked, "Are the number of units meeting the bylaw?"   Ms. Harbottle replied, "They are meeting it with the plus one bonus. John Cronin does not think there is a benefit there to offset the number of units.   The public benefit is a small walkway and/or a small improvement to a boat ramp (public) on Webster Street. [Ms. Harbottle read aloud portions of the draft ZBA decision.] It is possible that that could all work out. It would be nice to get plans to show what that looks like and to have some provisions in there to make sure that that really happens. They are talking about the off-site affordable unit. It would be nice to address the septic system, the drainage, the design standards.”
Mr. Walter said, “I thought that Mr. Solimondo had said, when he was here, he was going to meet our bylaw.” Ms. Harbottle said, “He said that.” Mr. Limbacher said, “It was more in the spirit of the bylaw.”
Mr. Limbacher said, "It makes sense to send a memo to the ZBA and list the items that Laura has including the part about public benefit. You could mention that Mike Solimondo has been part of the project all along.". The other members indicated that they agreed with Mr. Limbacher that a letter should be sent to the ZBA.
Ms. Harbottle said, "I don't agree with Walter Sullivan's interpretation, but there could be a big fight between the boards." Mr. Fenton said, "I am just curious - now that Town Meeting has passed the bylaw should the applicant come to the Planning Board rather than the ZBA? I am not trying to be territorial." Ms. Harbottle said, "They would have gotten the density anyway.”
Mr. Walter said, "The point is that it should meet the bylaw. We should say that in the memo. Timing is part of this too." Ms. Harbottle said, "They filed it after the first notice of the Planning Board hearing. They did not get their Special Permit before the first notice of the public hearing for Town Meeting. I think it is reasonable to expect them to go by the new bylaw. Mark – if you have any language you can think of."
Mr. Fenton said, "I am by no mean suggesting we should have an inter-board fight, but the bylaw was passed by Town Meeting. I will give some language to Laura.” Mr. Walter said, “Laura can do the memo and pass it around to the Board.”

Mr. Donald Hourihan of Humarock said he did not think that Mr. Solimondo should get public benefit credit for offering to do work on the launching ramp. Mr. Hourihan explained that the ramp was not used by the public because there is no parking. He said that the people of Humarock would receive no public benefit from Mr. Solimondo's project if all that is offered is to do some work on the launching ramp. Mr. Walter suggested that, since the ZBA public hearing has been closed, the Board could only discuss this issue in their memo.

HARBOR WALK: Mr. Fenton explained that he did a walk through the Harbor area with Mark Patterson and Dick Ladd. He said he explained what had been done on the Driftway and what was proposed for the bike path in North Scituate/Minot. The connection to the Marine Park was discussed along with the possible bridge over the Satuit Brook. Mr. Fenton said he looked at the Harbor Walk as the anchor to the whole pathway/pedestrian system throughout the town. The anchors are the two train stations, the villages, and the Harbor.

Mr. Limbacher said he also spoke to the Harbormaster and Mr. Patterson is very interested in having a Harbor Walk. Ms. Harbottle said it would be nice if Mr. Ladd could help pay for the design of the Harbor Walk. Mr. Fenton thought Mr. Ladd preferred to give money for something that would be concrete like signs.

Ms. Harbottle spoke about a Coastal Access Grant and the Design Charette that was done for the Scituate Harbor area.

The members indicated their support for the Harbor Walk project.

REORGANIZATION OF THE PLANNING BOARD

CHAIRMAN: Motion: Mr. Limbacher nominated Donald Walter to serve as Planning Board Chairman. Mr. Fenton Seconded the Motion. The vote was a unanimous vote in favor of the Motion.

VICE CHAIRMAN: Mrs. Brennan nominated Mrs. Chisholm for Planning Board Vice Chairman. Mr. Limbacher Seconded the Motion. The vote was a unanimous vote in favor of the Motion.
CLERK: Mr. Limbacher nominated Mr. Vogel to see as Planning Board Clerk. Mr. Fenton Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

ACCOUNTING PROCEDURES: Motion duly Moved by Robert Vogel, Seconded by Mr. Limbacher, and voted unanimously to pay the following:
1. MAPD, Inc. ($85.00) for Ms. Harbottle to attend MAPD Annual Conference June 5th and 6th.
2. Karen Sunnarborg ($2,000) for consulting services re Housing Plan.

FLOOD PLAIN & WATERSHED PROTECTION DISTRICT SPECIAL PERMIT PUBLIC HEARINGS: 114   EDWARD FOSTER ROAD (LOT 6) AND 118 EDWARD FOSTER ROAD (LOT 7)

The Chair read the legal notice regarding the two concurrent public hearings. The applicant, Maryann Doherty, was present along with her engineer, Paul Mirabito of Ross Engineering Company, and her attorney, Michael Bliss of Connors and Bliss.

Atty. Bliss said, “I am Michael Bliss and I am with the Boston firm of Connors and Bliss. I submitted a letter which you have in the application which reviews under Massachusetts Law and under Massachusetts Interpretative Rules the application of the town’s Flood Plain map (1972 Flood Plain Map) and how it applies to the two areas on our application before you. Our conclusion is that the bylaw does not apply to these two areas. I just want to take a second to walk you through that analysis.   As you are aware, the Flood Plain Map shows the boundary of the Flood Plain District by a bold dashed line. In addition to that bold dashed line there is also a specific locational designation, typically a contour. We are talking about the 10’ contour.   That line is accompanied by a locational designation that allows the line to be specifically located in the field. In the case we have here we have an inconsistency when you look at the area of First and Second Cliff. The inconsistency is with the way the bold dashed line is drawn and where the 10’ contour is because the 10’ contour here does not look at all like that. The 10’ contour runs along both sides of Edward Foster Road. So where you have an inconsistency between two descriptions the Massachusetts Law is pretty clear. What you do is that you chose the more specific description. In this case that would be the 10’ contour. Furthermore, there is another Massachusetts principle that I reference in the letter which says that where there is an ambiguity in a map that can’t be resolved in any other way the courts will then resolve it in favor of the interpretation of the land owner. So with those two Massachusetts principles state our conclusion that it is the 10’ contour that defines where this district begins and ends. In addition to that, outside of Massachusetts Law in general, there is your own Bylaw Section 470.10 which contemplates the situation where there is an uncertainty as to where the zoning boundary lies. In that case it directs the Building Inspector to rely on the contour as determined by a land surveyor. So that is again the situation we have here and as Paul will explain in more detail. The boundary should be in this area the 10’ contour.    So our conclusion is that we are not within the bylaw. That said, and we are here, and we did submit an application.”

Atty. Bliss continued, “We submitted the application in part because we do think that we meet the performance standards for a determination of suitability. Paul will explain that in more detail. Before we get into that detailed discussion I do want to make the overall point that this project has been traveling around for a long time.   It is a very old project. In the course of those travels it has been reviewed by the DEP, by Scituate Conservation Commission, and under the Wetlands Protection Act and Scituate local bylaws. Two of the important issues of the Wetlands Protection Act are flood control and storm damage control. So this project has been very carefully reviewed. This project has been very carefully reviewed with respect to flood issues, storm damage control, FEMA and the State Building Code. You are kind of the last stop for us. We are asking for a permit without prejudice from you.”

Mr. Mirabito said, “Just by way of a very brief history on October 1, 1991.   We did perc tests and went to the Board of Health and had a septic system approved. Then we went to the Conservation Commission where the Order of Conditions denied the project only because they thought the septic system would harm the barrier beach. What we proposed was approved but because it is on a barrier beach we had to go through the MEPA process which we did.   We did do a final environmental impact report (EIR) for MEPA and the project received approval from DEP. We received a Superceding Order of Conditions in 2004. Last year we received an Order of Conditions under the Scituate Conservation Commission under the local Wetland Bylaw. We addressed the resource areas which they have jurisdiction over. The local regulations are more stringent than the State.   They did issue an Order of Conditions approving the homes that were approved under the Superceding Order from the DEP.    Their focus was mainly on whether or not the area was subject to coastal storm flowage and whether or not we met the performance standards which we clearly did, so based on that they issued their Order of Conditions.”

Mr. Mirabito continued, “The original project was for two very large homes. After the MEPA review process the project was reduced by more than fifty percent. We are proposing to build two small single family homes under this project in accordance with the review by the Board of Health, DEP, and the Scituate Conservation Commission. The plan I submitted with the application is for Lots 6 and 7. Each lot has the correct amount of upland area. This is Edward Foster Road and this is the seawall shown in blue. The location of the proposed homes are in this area. The land slopes from the back of the seawall to Edward Foster Road. This pink line is the 10’ contour. The Zoning Bylaw clearly talks about the location of the Flood Plain District and the boundaries. The map has three distinct boundaries. One is the 10’ contour, one is a setback from the centerline of a brook, and the other is a setback so many feet behind a seawall.    All of those boundaries can be located on the ground exactly by field survey. That is what we have done here. This specific boundary is the 10’ contour. If you look at the map you can see that circle which is the elevation of the land where that rear line is which is 22-24. There is also a provision at the very end of the Flood Plain Bylaw that says that the Building Commissioner can require an accurate survey of where that line falls. Back in 1991 when we were going through the process if we had filed this the current Building Commissioner would have approved it. [Mr. Mirabito showed the Board how the land slopes and he pointed to various elevations on the site.]    The current inspector’s interpretation is ‘as shown on the map’. Under the application to the Conservation Commission we demonstrated that the land was not subject to flooding but that it was subject to coastal storm flowage. Coastal storm flowage in this case is when the waves come from the ocean and hits the seawall and the seawall takes the energy and then the   water flows over the property. FEMA has determined that the natural effect of that over-wash would be two feet. Over-wash is not flooding.   The difference between overwash and flooding is that with over-wash the water is coming in to the land after the waves break at the seawall and the water washes over the land and goes into the Harbor. Once it gets into the Harbor it would then be a V-zone. With that zone the water rises to a specific elevation which is elevation 11 and sits there and the land below that would be inundated with water. That is considered flooding. The portion of the property where the work is proposed is not subject to flooding. That has been demonstrated by our presentation to the Scituate Conservation Commission. The Town of Scituate Flood Plain Map, as you know, was prepared in 1972. It was done with federal grant money to come up with a plan to approximate the hazard area in the town. It was never based upon any engineering study.   However, in the thirty-six years since that map was produced FEMA has been very active in preparing maps starting in 1977 with revisions in 1986, 1992 and 2003. There are two existing homes on either side. One is the orange house. The other house over here (we did the work on that) has been razed and reconstructed.   This is a very stable land form. Starting in 1991 to 2004 we did surveys which shows that this land is constantly building up as opposed to eroding.
As I said, the Conservation Commission and DEP did reduce the project by more than fifty percent. There will be landscaping put back after the work is done. What I will show you know are the two houses that are being proposed. This is the outline of the house right here (28’ x 42’). If you went by zoning you could put a house here as big as 84’. The homes would be up on piles so the water can flow through it. Here is the driveway. The septic system has been approved by the Board of Health. They can’t tie into sewer. Apparently the town is not allowing homes along this portion of Edward Foster Road to tie into town sewer so they will be on septic systems. Again, this is the plan we submitted to DEP, MEPA, and the Scituate Conservation Commission and it has been approved by everyone.”

Ms. Harbottle said, “I read all the material Paul Mirabito provided and I also talked to Vinnie Kalishes and other department heads about this project.   It has been around for about twelve years. It was a long time ago when the septic system and the proposed house was brought to the Conservation Commission and then it was denied. Then there was a long process of trying to get approvals. DEP can override the local Conservation Commission denial. That approval finally came through. I think it was in 2006. That approval is really a different process than a zoning approval and I think that approval was about locating the septic system on a barrier beach. The issue that I think is in front of the Planning Board is the flood potential. The Building Inspector reviews applications for building permits and would initially tell an applicant that he needs a Flood Plain Special Permit. Apparently that is what happened in this case. If he did not believe that this was in the Flood Plain District he would not have asked them to get a Flood Plain Special Permit so that is why they are here. As far as the flooding issue, this is kind of different from other properties where the argument was made that it is not subject to flooding. Some of those properties are in the FEMA flood zone, but this is in a FEMA over-wash zone. This part of the property up here is in the over-wash zone and this part down here is actually in the velocity zone. The velocity zone is where you have the wave action and the intense waves pick up debris. It seems to me that it is a really difficult argument to make that this property is not subject to flooding. The other side of it and it is a hard one to tackle because you don’t want the septic system to be in the velocity zone. On the other hand relocating the houses to the velocity zone is not a good thing to do either because the issues revolving flooding are really complex. It is the question of damage to someone’s property and whether emergency services can get up there when it floods. There was a situation in the Glades a few years ago when there was a fire during a bad storm and a house burned down to the ground because there was no way for emergency vehicles to get there. I think there are a lot of involved safety issues with flooding so in my mind it would be difficult to justify giving them a Special Permit.”

Mr. Walter asked, “What about their claim that it is not in the Flood Plain & Watershed Protection District?” Ms. Harbottle replied, “I looked at the small Assessor’s map that shows the boundary of that district (I believe that is the map that Neil Duggan is using also) and it shows everything between First Cliff and Second Cliff in that district. The 10’ contour – Vinnie was the person that created that map. He will be the first one to say that those maps were not done in a very specific way. The FEMA maps were just reevaluated in 2003. That is a pretty recent evaluation.”

Mr. Fenton said, “So to clarify – is the flood zone defined as below 10’ contour or is it defined as shown on the map?” Ms. Harbottle read aloud portions of the Flood Plain Bylaw and said, “It says the locations and boundaries shall be as shown on a map entitled Town of Scituate, Massachusetts, Flood Plain & Watershed Protection District, 1972.”

Atty. Bliss went up to the table and used a map to show the Board the various lines under discussion.

Mr. Fenton said, “So, Laura, you are saying that it is, in effect, the map.” Ms. Harbottle agreed. Mr. Fenton continued, “The notion of defining flooding is an important question. Mr. Mirabito described flooding as being standing water and you talked about over-wash and velocity zones etc. I am familiar with the area so I know exactly what you are describing.”    Ms. Harbottle added, “One way to look at it is when you are paying for flood insurance the cost of insurance is a lot higher in the velocity zone rather than in the simple AE zone.” Mr. Fenton continued, “The term ‘flooding’ is a semantic question. Are we talking about flooding or standing water? I don’t think anyone would disagree that at times substantial amounts of water end up coming across this portion of the property.” Ms. Harbottle said, “The maps that FEMA uses are called the Flood Insurance Rate Map and that is where the velocity zone comes from.”

Mr. Vogel said, “The seawall seems to be the factor that creates the stability of this portion of land. If the seawall weren’t there there certainly be more potential for erosion and we would be much more concerned about what might happen in a flood. [Mr. Vogel spoke about the seawall in the Minot Beach area.] The fact that this land has been built over the short term since you started this in 1991 does not mean that it will always be there. Minot Beach has fallen in my life time by at least 6’. It is below the level it was in the ‘50’s.”

Ms. Harbottle said, “When you go out there you can see that the seawall is only about a foot above ground level. It is not a tall seawall. I think there are some pictures in the file showing sand actually covering the top of the seawall.”

Mr. Limbacher said, “Bob hit the nail on the head with the Minot Beach situation.”

Mr. Walter said, “One thing that I was looking at - if it is in the flood plain, is it a permissible use (a new residential dwelling)?” Ms. Harbottle replied, “The only provision where you could build a new building would be under the S470.9 determination of suitability. They would have to prove, to the satisfaction of the Planning Board, that the land is not subject to flooding and not unsuitable because of drainage conditions for any use otherwise permitted under the applicable provisions of the bylaw.….” Mr. Walter added, “But the uses for Special Permit does not mention residential dwellings either.”   Ms. Harbottle continued, “The way this bylaw has been used under determination of suitability is to make the whole bylaw flexible enough.”

Atty. Bliss said, “The determination of suitability actually says …’for any use otherwise permitted under the applicable provisions of the zoning bylaw, but not specifically listed under Section 400. Many, many, towns have this provision in their bylaws and it came before the Wetlands Protection Act had any teeth in it.   Under the determination of suitability you have the authority to approve anything.” Mr. Walter said, “Then it goes to the elevation of flooding.”

Ms. Harbottle said, “One of the reasons we have these bylaws is to protect the public but FEMA wants a town to control construction in the flood zone.   Whether or not they want to try to prohibit it I don’t know.    Construction in the flood zone effects our flood insurance rates.”

Mr. Walter asked, “How is this land any different than Peggotty Beach?” Ms. Harbottle replied, “This land would be for new homes.”

Mr. Walter called for public questions or comments.

Mr. Konde, 124 Edward Foster Road,   asked, “I am puzzled. We have this important zoning map and you use it to make decisions. If our map is ambiguous, confusing, or out of date shouldn’t we update it?” Mr. Walter replied, “The map as presented is not ambiguous.” Mr. Konde asked, “So why is there a question?”

Mr. Dayton, North River Road, remembered that back in 1978 the seawall along Edward Foster Road was totally destroyed

Mrs. Doherty said, “I lived there in 1978 and the seawall held then. Nothing was destroyed in 1978. No house was destroyed in ‘78.”

Mr. Walter asked if there were any other questions from the public. There were none at this time. He asked if the Board had any further questions.

Mr. Walter said, “So we have a map. Can you agree with that?” Mr. Fenton said, “I   think map is straightforward and I can agree with the Building Inspector’s interpretation. The question before us has to do with flooding. Laura gave us things to consider. I think we are supposed to think about the well being of the applicant and the immediate abutters. Are there safety issues for the applicant and the public?   Can a fire truck get out there during flooding? We know the area is subject to over-wash. This is new construction on a barrier beach. I say that but, as you know, we should also consider property rights. I think we are familiar with the site. You will not see standing water at all but you will see waves breaking over the seawall. The distance from the top of the wall to the sand moves up and down. That is the nature of an active zone.”

Mr. Limbacher said, “I know that in some of the Central Avenue properties – some have gone down and some have gone up.    This is still a barrier beach seawall or not.”

Mr. Mirabito said, “That seawall was put in 80 years or more ago. The seawall was built on a barrier beach which was relatively flat then. Over time the sand has actually built up to cover the seawall. In 1991 Mrs. Doherty hired an engineer from Woods Hole Oceanographic who worked all over the world. The presentation he made was when you have a seawall on a barrier beach like this – he said this was unique because the sand has built up. The soil on the ocean side of the wall is eroding on Surfside Road but that is not happening here and he explained why. The other thing I want to point out is that the federal government has FEMA and they have very strict regulations about what you have to do to construct a building in any one of their flood zones.   In addition to that in January 1 of this year they increased the construction standards for buildings within a mile of the coast. FEMA also prepares what they call a FIRM map (Federal Insurance Rate Map). The purpose of that map - it has several different types of flood zones which are mapped very thoroughly by FEMA. The reason they do that is they use that map to set the insurance rates   We will do an elevation certificates for the homeowners. We go by elevations we don’t go by what is shown on the map. We do that because FEMA has done the studies.    This zone has only changed a foot since 1977. Both Conservation and Health looked to see if the septic system would be safe and they agreed it would. They agreed that the house would be safe as long as it met the new codes. Across the street is the Town Marine Park and that is in the flood zone.   FEMA said that you can build a house in the V zone but you have to build it to certain standards. Our septic system is not in a velocity zone it is in the over-wash zone. Part of the house is in the V-zone. The house will be safe and Neil Duggan and the Conservation Commission agree. The point is that the proposed use is a single family home and it is safe for that proposed use. The land does not flood; it is subject to over wash; the buildings will be safe and they will meet all state and local standards.”

Jane Thompson of Circuit Avenue asked if there would be one house or two houses. Mr. Walter said the proposal calls for two homes, one home on each lot. Mrs. Thompson said, “The seawall on the ocean side – it is true that it has filled in. However, down on the other end of the beach it has totally washed away quite often. I don’t know what that says except that it is not at all consistent.   My husband was here in 1978. I was not. The whole wall around First Cliff had to be rebuilt after that storm of 1978.”

Mrs. Chisholm said, “Listening to everything that has been said - we know where they are. It says in our bylaw that nothing new can be built in that area unless we determine that it is suitable. We turned down a project in Minot because of water coming over the wall and washing in and out. I don’t see how we can find it suitable at this point in time to put two houses there. FEMA has their own thing but we have our own bylaw.”

Mr. Walter said, “The question before us is – is that land subject to flooding? Then we define ‘flooding’. Is it flooding or is it over-wash?” Mrs. Brennan said, “We have to look at it in any case.” Mr. Limbacher said, “It also talks about a threat to public health. To the extent that it floods, to what extent does that cause problems with public safety?”

Mr. Walter said, “I want to talk about the over-wash. How do you feel about that? Is that flooding? My sense is that it is not standing water.”   Mrs. Chisholm replied, “It is a type of flooding.”   Mrs. Brennan said, “It is still flooding basements.” Mr. Mirabito said, “There will be no basements. The houses will be on pilings.” Ms. Harbottle added, “About half of lot is in what FEMA calls an over-wash zone which means that the water just passes through.   The velocity zone is not looked at in that way.   A velocity zone is considered to have serious flooding and that is the part of the lot where the house is located.”

Mr. Fenton said, “To me - Paul makes the case that given the standards the building will be up at 13’.” Mr. Mirabito said, “No, the first floor elevation is at EL23. FEMA says that over-wash zones have a specific rhythm. This is the velocity zone. The front portion of the house here is in the velocity zone, but the first floor will be at 23’. Scituate adds a foot to all the flood zones for good measure.”    Mr. Fenton said, “So he is saying that given all the construction standards they are above the flood zone.   That is the challenge.” Mr. Fenton read aloud portions of S470.9.

Mr. Mirabito said, “If I can add to that, what is interesting, is that two doors down they just added a second floor to the top of the existing structure.   The existing house next to us was able to raze and rebuild because the house was existing. When they rebuilt it they had to built it to current standards. Conservation made that house go up higher than the old house.   You can build in these zones but we have to meet the regulations which we have when we went before all the other agencies.”

Mr. Limbacher said, “Laura’s point is that FEMA looks at things from a different point of view.”   Atty. Bliss said, “The Wetlands Protection Act has flood prevention issues. The house was approved, not just the septic system. They were approved by both the state and local agencies.”   Mr. Limbacher said, “I understand but we (Conservation, Board of Health, Planning Board) all have different criteria and we are looking at different aspects of it. If there is no further public input I would move to close the public hearing.”

Mr. Mirabito spoke about the Marinelli case, Central Avenue in Humarock, where the Board approved a house on a vacant lot under a determination of suitability. He said the Marinelli case was similar to the Doherty project but the Doherty project is much better protected.

Atty. Bliss said, “I have a sense of how the Board is thinking. I think we would like to request that the hearing be continued.” Mr. Walter asked, “Do you think you can add something to what we have heard already?” Mr. Fenton said, “If he can add something new I would be amenable to that.”   Mr. Limbacher said, “Yes, and we have to consider property rights.” Mr. Fenton added, “Absolutely. Do you want to continue to two weeks from tonight?”

The Board discussed the time to continue. Ms. Harbottle asked the Board, “Do you want to try to get new material from an applicant a week ahead of a meeting? If it does not come in until the day of the meeting what should happen?” Mr. Fenton said, “No later than the Monday before a meeting.”   Mr. Limbacher asked, “What’s the logic? If it isn’t in by Friday (if that is the deadline) then we wouldn’t discuss it?”   Ms. Harbottle replied, “The logic is that we need some kind of a date. Today I had to spend a lot of time getting things together for the meeting tonight.” Mrs. Brennan said, “You can look at it the other way. If I was an applicant it would bother me that people were arriving half an hour before the meeting and rushing through things. They might miss something.” Both the applicant and the Board agreed that June 12th was the date to continue.

MOTION: Mr. Limbacher Moved to continue the two Flood Plain & Watershed Protection District Public Hearings regarding:
1.      114 Edward Foster Road (Lot 6) Owner/Applicant: Maryann Doherty.
2.      118 Edward Foster Road (Lot 7) Owner/Applicant: Maryann Doherty

to June 12th at 8:30 P.M. Mr. Fenton Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

Mrs. Brennan asked, “Did we agree that applicants would be required to have material submitted to the Planning Board the Friday before a meeting?” Mr. Walter said, “That’s fair.” Ms. Harbottle said, “Friday at 8:30 A.M. so we will have time to put it in a packet.”