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Scituate Planning Board, March 27, 2008
SCITUATE PLANNING BOARD

MINUTES

MARCH 27, 2008

Members Present: Mr. Walter, Mr. Limbacher, Mr. Fenton, Mrs. Brennan, Mrs. Chisholm
Others Present: Ms. Harbottle, Town Planner; Mr. W. Collins, Mr. K. Skeiber, Atty. W. Ohrenberger, Atty. G. Harris; Mr. J. Hallin; Mr. J. McGrath, Mr. P. Mirabito; Mr. S. Bjorklund
See Sign-in List for names of others present.

ACCEPTANCE OF AGENDA: MOTION - Mr. Limbacher Moved to accept the Agenda with the modification to include the three Form A Plans for the Marshfield Avenue area. Mr. Fenton Seconded the Motion and the vote was a unanimous vote in favor of the Motion.
ACCOUNTING PROCEDURE: Motion duly Moved by Mr. Limbacher, Seconded by Mr. Fenton, and voted unanimously to pay the following:
1.      Bond Printing ($85.26) for 500 sheets of Planning Board letterhead.
2.      Direct Resources ($25.00) for 1000 Planning Board envelopes.
3.      Reimburse Laura Harbottle ($50.00) for cost of attending a conference re Chapter 40B.
ACCEPTANCE OF MINUTES: Motion duly made by Mrs. Brennan, Seconded by Mr. Limbacher, and voted unanimously to approve the Minutes of May 24, 2007, January 24, 2008 and February 28, 2008.

CONTINUATION OF SITE PLAN SPECIAL PERMIT PUBLIC HEARING 194 FRONT STREET (T.K. O’MALLEYS)
The applicants Walter Collins and Kevin Skeiber were present along with their attorneys, William Ohrenberger and Greg Harris.
Atty. Ohrenberger said, "They will buy a van and have shuttle/valet parking back and forth. We would have it posted in the lot ‘T.K’s Patrons Only Valet Parking’. If the slip owner does not use it his permit would be subject to revocation. That is one proposition. Do you want to ask questions about that or will that address the issue of parking?" Mr. Walter asked, " So with the van then Cole Parkway would be utilized?"    Atty. Ohrenberger said, “Right.”
Mr. Fenton said, "I sort of threw out those kind of ideas at the last meeting. I would like to hear from the rest of the Board. I know the Board has struggled with parking e.g. time of day. If the applicant is saying that he can cover real time and all weekends …… “   Atty. Ohrenberger interjected, “ The other thing also is that it could also be for restaurant patrons too. We could publicize it." Mr. Fenton said, “My initial reaction is that there is a general need there anyway for the restaurant.”
Mrs. Brennan said, "We had broached the idea of valet parking and I thought the statement was made that it did not work." Atty. Ohrenberger replied, "That was just for the restaurant. Boaters are different."
Mr. Limbacher said, "It is the interesting proposal. I still don’t have the parking for the slips whether transient or not."
Mrs. Chisholm said, "That is my reaction. It serves the purpose of getting the people from Cole Parkway to the boats, but it is still not providing the parking." Mr. Walter said, “That is my reaction. I know you mentioned CVS.” Atty. Ohrenberger said, “CVS, the Conway Building - all have parking issues. It is all the same situation.”   Mr. Walter said, "The way I looked at those was that CVS was already there and was just assuming another storefront. They were in a pre-existing position. The Conway Building and Duncan Donuts were existing conditions. With this one we are adding to and we are not staying level. Believe me,   I am a proponent for public parking for businesses. My concern goes back to the Bylaw and it requires so many parking spaces per slip and you are clearly not meeting that. As Bill has mentioned we don’t define transient."
Atty. Ohrenberger said, "I won’t belabor the point because I already gave you all my reasons why   -- one of the reasons you waived parking for the Marine Park was that the same people would access it via a boat shuttle from Cole Parkway.” Mr. Limbacher replied, "But the space was available at the Marine Park to meet the requirement for 1 ½ spaces per slip. They shift the boats north to south seasonably.”
Atty. Ohrenberger said, “So the Board does not like it. The second to the last proposition -   put in the dock, put in a straight float, no laterals, no slips, no Ch. 91 deck, eliminate the walkway, lock box for security people. The Bournazos next door have their own access. Obviously it will be an enormous cost to do that but Kevin and Walter will do that because they think that this is a tremendous attribute. They will do that much in hopes that at some point in the future they will be able to provide parking. So you will not have finger piers, no laterals.    The launch can drop people off there and kayaks and canoes could tie up and have lunch if they want to.” Mr. Fenton said, “So there will be no overnight slips.”
Mr. Limbacher asked, "How do I enforce it? What happens if someone is there overnight?" Mrs. Brennan asked, "Can I pull my boat up to it as you propose?" Atty. Ohrenberger replied, “No.”   Mr. Walter said, “You would be coming in on the launch or in a canoe or kayak.”
Mr. Fenton said, "This will test the idea of true transient type use. You get public benefit. There is no facility for over night. To my mind it is not a slip. The longer question - where are you going with it? I am wondering if we could write Conditions – no finger piers until such time as parking is available.” Mr. Walter said, "We have been told, and it may be true or not, that 1 ½ parking spaces per slip is too much. Perhaps there should be a bylaw change.”
Mrs. Brennan asked, "How long will the straight slip be?" Atty. Ohrenberger showed her on the plan. Mrs. Chisholm said, "So what is the benefit of that to anyone?" Mr. Limbacher said, "The benefit is that there is a movement afoot to change the parking requirement. If the bylaw is changed then they could come back and put in the finger piers etc."   Atty. Ohrenberger replied, "Just to clarify - if you allow a Special Permit then we can’t modify that. If they achieve parking we would have to come back for a whole new Special Permit."
Mr. Walter said, "That’s fair. We have been at this so long because you have been trying to make it work. So the benefit to you is that you would be able to have dingys and kayaks pull up and have lunch." Atty. Ohrenberger replied, "Yes, advertising will help. People can get food and bring it back to the boat." Mr. Walter added, "This would give us a chance to see how this would work." Mr. Fenton added, “And even from a waterways standpoint.”
Mrs. Chisholm asked, "Does the Harbormaster know anything about this idea?" Atty. Ohrenberger replied, "Yes, the Waterways and the Harbormaster like the entire plan. They say that in their recommendation that they want kayak and dingys."
Mr. Walter asked, "How can we make something like this work? What do you call it."    Mr. Limbacher replied, "It may be called a dock and they won’t need us at all for any permits."   Atty. Ohrenberger said, "We have to still provide slips for Bourne and Bournazos."   Mr. Fenton asked, "Can we do a Condition that the parking for those slips has to be at their address on Harbor Heights Road?" Ms. Harbottle said, “It is in walking distance of the slips.”
Mr. Limbacher said, "I like this better than the valet parking with the van in Cole Parkway. I went by Dr. Parsons lot the other day and there were five cars in the lot and Dr. Parsons’ business was not open."
Mr. Limbacher asked, "Can I think about it for awhile? I kind of like the idea but I still have to make sure that I can get over the hurdle that I have about the slips and the parking that is required."
Atty. Ohrenberger said, "The Waterways Commission  would like the whole thing." Mrs. Brennan said, "I still think we owe the courtesy of telling the Waterways Commission." Atty. Ohrenberger said, "I know what their answer will be. They want the whole thing.   They are just looking at the water side."
Mr. Limbacher said, "If there had been parking this thing would have been done the first night. You need to show where the parking for those two slips are.” Mr. Walter asked, "So we are talking that the parking will be at the Bournazos own property? Mr. Fenton said, "Just associate it with the address. Mr. Limbacher said, "The owner of the slip can demonstrate where the parking is." Atty. Ohrenberger said, “The Special Permit can say that.”
Mr. Fenton said, "They are being very frank with us and I appreciate that. They will not risk revocation of their Special Permit by allowing overnight boat parking. The day visitor is still a good thing. There will be a benefit to the businesses from a day visitor. The boat traffic can market the restaurant and other businesses.”
Ms. Harbottle said, " I think it is a very interesting idea. If the Bournazos want to use their slips they will have to provide parking."
Mr. Walter said, "Since Bill wants to wait we will need a continuance. Will you consider a continuance?" Atty. Ohrenberger replied, “Yes, to April 10th.”
Mr. E. Leary, 199 Front Street, asked, “Did I hear that there will be no overnight tie ups allowed on these docks?” Mr. Walter relied, “Yes, except for the two Bournazos’ slips.” Mr. Leary said, “I keep hearing dingy, dingy. What will it be?”   Mrs. Brennan replied, “It can be a tie up for a kayak too.” Atty. Ohrenberger said, “If you have a boat on a mooring you can come in on your launch and tie up for a limited time or just drop off people.” Mr. Limbacher added, “ As I understand you, it is a drop off and pick up spot only for the patrons of T.K.’s.    There is the potential of having two boats for the Bournazos. There will be no permanent dinghys (other than transients coming in) and nothing there over night. There will be only two defined slips. That is my understanding. Is that correct?” Atty. Ohrenberg said that was correct.
The Board discussed the time for the continuance. April 10th was the date selected. Atty. Ohrenberger said he would prepare Conditions in advance.
MOTION: Mr. Fenton Moved to continue the Site Plan Special Permit Public hearing for 194 Front Street to April 10, 2008 at 7:00 P.M. Applicant: Walter . Collins, Trustee of 194 Front Street Realty Trust. Mr. Limbacher Seconded the Motion and the vote was a unanimous vote in favor of the Motion.

ACTION ON CONDITIONS RE MIXED USE/VILLAGE BUSINESS OVERLAY DISTRICT SPECIAL PERMIT 6 OLD COUNTRY WAY
Mr. Hallin was present along with his attorney, W. Ohrenberger.

Mr. Walter said that the goal of this meeting is to go over the Conditions and vote them. Mrs. Brennan read aloud the proposed Conditions and Findings of Fact. See document in file for details.
FINDINGS OF FACT: The Board discussed the proposed Findings of Fact. The Board discussed having just one permit for this project. Mr. Limbacher said that there should be a reference made to the previously granted Site Plan Administrative Review decision and the Accessory Dwelling Special Permit Decision for this property. Mr. Fenton said it was a critical point that the Decision reference both the Accessory Dwelling Special Permit and the Site Plan Administrative Review Decision. See Finding #2 regarding the Accessory Dwelling (approved July 2004) and Finding #6 regarding the Site Plan Administrative Review (approved March 2001).
Atty. Ohrenberger asked that the words 'and/or food service' be added to Finding #3.    Ms. Harbottle asked if there was parking for the food service use and Atty. Ohrenberger said there was. Mrs. Chisholm said that a food service could be just a take out restaurant. The members agreed to add the wording about food service.

CONDITIONS OF APPROVAL: Mrs. Brennan read aloud the proposed Conditions. Holds were placed on #6 (parking), #10 (noise mitigation),   #14 (drainage). The discussion centered on the Conditions.
Mr. Limbacher said, "We need to say if the use is for a carpenters shop is changed then he would have to come back to the Board.” Mr. Fenton added, "The Site Plan Administrative Review restricts the use of the building to a carpenter shop and says that there shall be no outdoor storage of materials or equipment.” The Board agreed that both the Findings and the Conditions should refer to the two previous permits.
The Board discussed the parking spaces. Mr. Limbacher said he wanted to see the parking identified e.g. retail so many spots, rental so many spots. Mr. Fenton said that the parking should match what is shown on the plan. The Board agreed to add the parking figures listed in the Town Planner's Update.    Ms. Harbottle will add a parking summary table to the Decision.
The Board discussed what would happen if on street parallel parking was provided in conjunction with the Streetscape plans.    Ms. Harbottle used the plans to show the Board what would happen with the sidewalk and walkway system should on street parallel parking was provided. Mr. Limbacher thought that the plan will have to be modified if Streetscape comes up with the money and funds the parallel parking. Mr. Fenton showed a curb that he would like to see constructed.   Atty. Ohrenberger said, "You could put in a Condition to the extent that if the parallel street parking is done then other spaces will be eliminated." Mr. Fenton said, "No, that is not where we were heading.” Mr. Walter said, “The only thing that it would effect would be your sidewalk.”   Ms. Harbottle said, "Since the property is in the Water Resource Protection District it would be great not to have all the parking on the site." Mr. Limbacher added, "We could say that the parking will be as shown on the plan and based on the following matrix. In the event that parallel parking is provided this plan will be modified to accommodate that parallel parking plan." Mr. Fenton said, “ We should say that the sidewalk shall be made to align with the plan for the proposed crosswalk. It should all tie in. I still like that curb at the intersection. We should maintain the curb extension at the driveway entrance. The applicant should be encouraged to pursue parallel parking.”
Atty. Ohrenberger said, "He wants to get this done. He does not want to wait for a year for Streetscape. Just say modify the walkway as necessary. He does not want to have to wait to coordinate with Streetscape.”   Mr. Walter replied, “He can essentially build it as it is here.”
Mr. Limbacher said, "I want the matrix in there. Say as shown on the plan and based on the following matrix. The food service is retail and should not change the parking." Atty. Ohrenberger referred to the Parking Bylaw. Ms. Harbottle suggested, "Say all parking shall comply with the Zoning Bylaw and that parking will have to comply if there is any change in use." The members agreed.
Mr. Fenton described the sidewalk and walkway system that he preferred and asked that the Condition say that the sidewalk shall be made to align with the plan for the proposed crosswalk.
The Board discussed the Condition about landscaping and the words 'as well as    screening for abutting properties ‘ should be added to the Conditions.
There was a discussion about Section 560.7 Affordability Standards. Atty. Ohrenberger referred to S560.7C deed restriction and explained the legal doctrine of ‘in perpetuity’. Ms. Harbottle explained how the affordability aspect must work and explained how the Conditions should be written, e.g. ‘and shall be in force in perpetuity or as long a period as legally possible’.     Mrs. Brennan asked, "Why not just reference the Bylaw?" Ms. Harbottle replied, "People do not go to the bylaw. It would be better to spell it out so everyone will know what it should be."    Mr. Fenton agreed with Ms. Harbottle. Ms. Harbottle added, “It should be written in the Conditions because some day someone could try to get rid of this whole overlay district.”
The Board discussed a Condition about noise mitigation including truck idling. Mr. Hallin explained how the concrete trucks would have to park and idling. Concerns were raised about trucks blocking access to Fitts Mill and the homes in the area. Atty. Ohrenberger pointed out that a concrete truck may be pouring concrete for a few hours but not days. Mrs. Brennan asked if there was any way to keep the trucks on site. Mr. Hallin said there was room on site during the day so it should not be a problem.  The following language was proposed: 'trucks shall keep idling to a minimum with no idling permitted off-site'.
Mr. Limbacher again said he wanted a Condition referencing the prior approvals (the Site Plan Administrative Review Decision and the Accessory Dwelling Special Permit Decision) and he wanted it stated that the conditions in the Site Plan Administrative Review remain in full effect and that that Decision should be attached to this Special Permit Decision.
The discussion centered on the landscaping and when it should be installed. The Board decided that the landscaping, sidewalks, and bicycle rack(s) shall be installed prior to the issuance of the first final occupancy permit for the reconstructed mixed-use building or by the next growing season.
Atty. Ohrenberger referred back to an earlier Condition regarding sewer and he suggested that the wording could state that the applicant must obtain all necessary approvals for the use of sewer ‘or comply with Title 5 of the State Environmental Code’.
Mr. Limbacher said, "I want a Condition that says that this is retail and this is residential. I don’t want to end up with all retail. I like the Conway verbage. We should say something to the effect that any change to the plan showing X amount of retail and X amount of residential shall be a violation. Atty. Ohrenberger said, "That is another body of law. The State law clearly states what the procedure is. If there is a violation the Building Commissioner will go after it and then it will go to the ZBA." Mr. Fenton suggested that the numbers of the retail square footage and the residential square footage should be spelled out in the Decision and the Decision should state that if there is a change in those numbers it would require an amendment of the Special Permit.
The Board briefly discussed the proposed drainage. Mr. Limbacher suggested the Board get a final statement from David Nyman. Ms. Harbottle said that the drainage plan had not changed in a long time. Mr. Hallin described the drainage plan in detail.    Mr. Fenton suggested language stating that before a building permit is issued, the town's consulting engineer shall review the final plan.
Mr. Limbacher asked about the review by the Design Review Committee. Ms Harbottle said that at the last DRC meeting there was a discussion about the double windows and she said that the DRC backed off on the requirement for shutters Mr. Limbacher thought the DRC wanted shutters. Ms. Harbottle referred to an e-mail from the Committee. Mr. Walter said the Board could refer to the last memo from the DRC. Mr. Limbacher thought there was supposed to be another meeting with the DRC   Mr. Hallin explained the latest plan to the Board noting the window treatments. Mr. Walter said he did not care if there were shutters. The Board decided there should be a condition that would discuss the dormers (with double windows) and that the building design should reference the revised 3/2/08 memo and the plan showing exterior elevations dated 3/27/098.
MOTION: Mr. Fenton Moved the Findings of Fact as amended. Mrs. Chisholm        Seconded the Motion and the vote was a unanimous vote in favor of the Motion.
MOTION: Mr. Fenton Moved to Approve the Village Business Overlay District Mixed Use Special Permit for 6 Old Country Way with the Conditions as amended at this meeting. Mrs. Chisholm Seconded the Motion. The vote was as follows: Mr. Walter, Mr. Fenton, Mrs. Chisholm, and Mrs. Brennan voted in favor of the Motion. Mr. Limbacher was opposed.

CONTINUATION OF THREE PUBLIC HEARINGS FOR 556 & 568 FIRST PARISH ROAD
The applicant, J. McGrath, was present along with his attorneys, William Ohrenberger and Jeff DeLisi of Ohrenberger Assocs., and his engineer, Paul Mirabito.   The Chairman read the Agenda item noting the three public hearings under discussion.
Atty. Ohrenberger reminded the Board that they had wanted more information about the Board of Health issues so Mr. Mirabito talked with the Health Agent and she sent a letter to the Board.
Mr. Walter asked about the parcel of land that has a restriction on it. Mr. Mirabito said, "On the revised plan I show the stone wall (the field area behind the Gray house). There were two lots there and we reduced that to one house in this area here and we came up with a total of 13 lots rather than 14 lots. To clarify there are no homes in that field area on this plan. Where we had two homes on roughly 81,000 sq. ft. we show one home. That home, on this plan, shows that it meets zoning requirements as far as lot width and lot area. The septic system is in this area here. ”
Mr. Fenton said, "So it is down from 14 lots to 13 lots. We thought there was a restriction. So they are saying that they lose one on the Conventional Plan." Mr. Walter added, "So that will remain open." Mr. Limbacher added, "My understanding is that they were using Lot 1 (for sake of argument) and that they could put a house on it. In reality they couldn’t. So they are taking Lot 1 out of the equation. So rather than 14 they will have 13 lots.”
Mrs. Brennan said, "That was question #1. I thought the abutters had a another question and that was about the septic system." Atty. Ohrenberger said, "The point was that Jennifer had not submitted a letter and she did that on March 19th (received March 21st)." Mr. Walter read the letter from the Health Agent. Mr. Fenton asked, "Can we explain the basis of that?". Ms. Harbottle said, " It does not have a lot of background information. Is different from the first memo. She is the person to answer it."
Mr. Fenton said, “The question that I proposed, which is a more general question, - which is can we use conceptual septic systems in there that don’t have perk tests yet. I am not taking a position. Is Jennifer the person to answer it?”

Atty. Ohrenberger read the section of the Subdivision Regulations regarding the requirement that the Board of Health shall report, in writing, to the Planning Board the approval or disapproval of any plans.   So if the professional person says that it is okay then I would suggest that it is.”

Mr. Limbacher asked, "Do we have percs anywhere near where you show the systems?" Mr. Mirabito replied, "Some of them.   I sat down with Jennifer and the Bylaw is very clear ( Section 550.4C). There is one paragraph that specifically instructs the Board of Health how to review the Conventional Density Plan. I sat down with Jennifer and she read it and she certainly knows how to read zoning regulations.   I went over the Conventional Density Plan and I went over the requirements of the Bylaw and I showed her the information that she asked me for. At the conclusion of the meeting she agreed that there was no evidence based on the percs we had (one perc for each lot and not on each lot) and based on the fact that it will be a shared system - she agreed that there was no evidence on this plan, and in accordance with the required Section C, that the number of lots shown on the plan could not be built in accordance with Title 5. So she wrote the memo which I think is very clear. This is what you are looking for. This is what we provided to you. Since she wrote this there has been communications back and forth from her. I asked her if she needed to change her memo and she said no. This speaks for itself. We have gone through this on the last three Flexible Open Space Development Plans. I think this Board feels that you have to have a perc test on each lot. The Bylaw never said that and that Bylaw has never been changed. She simply reviewed it in accordance with the language in your Bylaw and that is her response and I believe it is right on point.”
Mrs. Brennan asked, "So why did you ask her if she wanted to clear it up?" Atty. Ohrenberger replied, "Because of the flurry of e-mail correspondence from Laura giving her opinion as to what Title 5 says. The query was because you (Laura) disagreed with Jennifer’s interpretation.”
Mr. Limbacher said, "I talked to her Monday night. My understanding is that I don’t have to have a perc on every lot but I have to have percs capable of supporting the lots. If you think back to the ones we have looked at e.g. the Harrington property where they showed a shared system at the top of the hill and because they had rattails they were able to show that they had a system that would support each one of them. We went from that to their Flexible. The only distinction was that we allowed the Form A as a matter of right to represent the Conventional Density Plan. I think that Jennifer has made it clear to me that they can put out one system for each lot or a shared system for the lots. She took it one step further and said you can’t put anymore on the Flexible than you could on the Conventional.”
Mr. Fenton asked Ms. Harbottle for her opinion.  Ms. Harbottle said, "The reason that I went back to Jennifer was that these two memos seem to be on different paths.   One of them says we don’t have the perks on all the lots so how can we tell what is going on. Then the other memo comes through that says everything is fine and there is no problem. So I went back to her and asked her about the differences. We went over the plan a number of times. I know there was a number of different plans that she worked with and her last comment to me was if you think I should say something different I will just write a memo that way. That is where my e-mail came from.    She took my e-mail and sent it to Paul as far as I know. That is what happened."
Mr. Fenton asked Ms. Harbottle, "So your position is that we should look for percs representing each lot."   Ms. Harbottle replied, "You have to be the ones to interpret this Bylaw. The Bylaw is not written well.   My recommendation would be to look at it in as practical a way as you can."
Mr. Walter read S550.3 aloud and said, "We have that." Mr. Mirabito added, "We have 31 perc tests." Mr. Walter added, "They are just not in all the locations around the site."
Mr. Limbacher said, "This does not pass the straight face test. Look at sheet L11 and L10. Coming off a cul-de-sac I am going to go 75’ and then I am going to go 6’ to get to the top of the septic system. I am going to run along the top of the septic system for 120’ and then I am going to come down 7’. There is a slope on each side. There will be a driveway going down there.” Mr. Limbacher and Mr. Mirabito both described the slopes and the elevations. Mr. Mirabito said, "You have to realize that the road is up as well because the stormwater basin is down there.   Jennifer and I met and Jennifer wrote this memo and then Laura talked to her and told Laura that if there was some language she wanted then give it to her. Laura gave language to Jennifer but Jennifer did not agree with it. She did not agree with Laura’s interpretation of Jennifer’s role under 550.4C . It is as simple as that. Under S550.4C your bylaw does not require us to do a full design. All it says is that there must be evidence shown to the Board of Health that you can, if fact, get a system on each individual lot that will comply Title 5. It does not say you have to have a perc on each lot.” Mr. Limbacher said, “I am not saying that either.” Mr. Mirabito continued, “They could be mounded systems. There is nothing unusual about this plan. It meets your bylaw.   We have been through this before. Doctor’s Hill is the other example. We did not do percs on all the lots there.” Mr. Limbacher asked, "I am not talking about the need for percs. Is it reasonable that you can build that system there?"   Mr. Mirabito replied, "Yes, absolutely.   This is not fully designed.   We will have to follow Title 5 and the local Board of Health Rules & Regulations.   It just shows that we can get a system that meets Title 5.”
Mr. Limbacher said, “So I am being asked to make a determination that I can build the subdivision." Mr. Mirabito said, "Yes, you could build it. The only way to completely convince you would be to design the whole subdivision." Mr. Fenton said, "But the challenge is they won’t do the Flexible if they have to design the whole subdivision in advance.”
Mr. Limbacher and Mr. Mirabito continued to discuss the elevations, contours, and slopes of the property and how the septic systems could be designed to meet Title 5. Mr. Mirabito explained how the houses and roads could be constructed on the final fully designed plan.
Mr. Limbacher showed how the water will sheet across the property. Mr. Mirabito said, "We have to collect the water and treat it. That is in your bylaw."   Mrs. Brennan said, "How is the water from L9 going to get to the basin."   Mr. Mirabito replied, "First of all these are the proposed basins. The other option is that you can put in roof leaders here. You can put leaching trenches along the driveways. If we do that all these basins will squeeze up.   If you remember the first Conventional Plan I had we showed stormwater basins on each individual lot and the Board did not like that. You asked us to show standard basins. [Mr. Mirabito explained the new plan and how runoff could be collected.] Again, this is a Conventional Plan. It is not fully designed. That is not required.   To answer your questions specifically I would have to do a full design. I am not prepared to do it because the bylaw does not require it." Mr. Limbacher said, “I do not think we are suggesting that at all. What we are trying to do is to just conceptually understand how you would handle it.”
Mr. Walter said, "If you look at that plan you see how houses are behind other houses and driveways are 125’ long. It is a terrible plan. I know it may meet the bylaw, but who would ever want to build it? Who would want to live there? What is the marketability of it?   I understand that that may not be in our purview. My sense is that is what everyone is struggling with." Mr. Mirabito said, "This is just one option. He could file it tomorrow and not do the Flexible Open Space."
Mrs. Brennan said, "I feel it is important to go through this because it helps us and it helps the abutters. It is important to know that what we will end up with in the end. Even though this meets all of our bylaws it does not mean it is the best for this neighborhood.”
Mr. Mirabito said, "The only difference between a Subdivision and a Flexible Open Space is that with a subdivision the applicant must meet your Rules & Regulations and if he does that he is entitled to the permit. If he files for a Flexible Open Space that is a Special Permit and the bylaw says that the Board may approve the Special Permit and he needs four votes. There is no guarantee.   At Doctor’s Hill we had a fully design subdivision and the Board asked the applicant to change that and go with a Flexible and he chose to do that."
Mrs. Chisholm said, "Of all the subdivisions that I have seen I have never seen anything like this. If you really came in here with a subdivision and you really wanted to do this, I would be horrified. It is just a horrible layout. I know you want 13 and originally 14 houses in there. Maybe we are looking for you to cut it down a little bit. I really don’t believe you can bet 13 or 14 houses in there and have it look like an attractive development and an attractive place where people would want to live." Mr. Mirabito said, "He is not asking to build this.”
Mr. Walter said, "We understand that. This is not what we have been become accustomed to. I would like to see fewer lots. I know we said that the first night. We have to base the Flexible on what you have up there and the struggle is that that is terrible."
Atty. Ohrenberger said, "It comes down to to philosophy – the reason to have the Flexible is to have open space. If you don't like something like this and you want the Conventional completely designed then logic dictates that no one will ever do a Flexible."
Mr. Walter said, "We want something reasonable. I think you would have a real hard time selling these homes. I know the developer wants to make money and I don’t begrudge that.   I think you are hearing us talk through it. We are trying to find a way for you to reduce the number of lots to make the Flexible feel more like a Flexible and create those buffers. We know there are a lot of issues and we know that will all come at the next part, but we want to start at a level that makes sense."
Atty. Ohrenberger said, "What Paul Mirabito has submitted complies with your bylaw. We are asking for this number. If it is not that number then Paul Mirabito and Jack McGrath will decide, in light of that, if he should just do a conventional subdivision. I am not saying that the Board does not have the right to decide. Obviously you do, you are the elected officials. That is something that they will have to decide. Jack felt a Flexible Open Space is a good thing. You may disagree."   Mr. Walter said, "We always agree that the Flexible makes more sense."   Atty. Ohrenberger replied, "But you are saying that you don’t like the look of that anyway."    Mr. Walter continued, "We want to balance rights of the applicant with the protections under the bylaw."
Mr. Fenton asked, "Is our only choice to say yes or no or can we say yes but only 12 lots? Procedurally what can we do?".   Ms. Harbottle replied, "That is not usually done but I suppose you can do it." Mr. Fenton said, "Perhaps when we see it the basin will not be as large."
Atty. Ohrenberger said, "In response to Mark’s procedural question – the answer is yes you can make the call. You can say no it is not 13 it is 12 or whatever. The fact is that we put forth what we feel is justified. You can disagree with that. You make the call and then the applicant will decide what they want to do.”
Mr. Limbacher said, “When I look at a Conventional Density Plan I want to see what realistic can be done.    I think they would be hard pressed to build this the way it is laid out.” Mr. Fenton said, “We are not trying to make an aesthetic judgment. We have to decide if it is a really viable Conventional Density.”
Mrs. Chisholm said, “According to Jennifer it is fine and the bylaw says we need that information from her. She is saying 14 lots work.” Mr. Limbacher said, “That is for septic.”
Atty. Ohrenberger said, “It has to be a pretty straightforward decision. We are looking for you to give us a number. If we can’t do a Flexible then we will get back to you shortly. We may withdraw this and file a conventional.”
Mr. Limbacher said to Mr. Fenton, “How do I know what the number is – is it 10, 12?” Mr. Fenton replied, “That is the challenge.”
Mr. Limbacher said, “If I look at the driveway for Lot 8. It is like a four lane highway to get down to those houses. I have not figured out how far it is. It has to be longer than 600’. So we have to come up with a number. I don’t know what the number is. They will have to decide what number is economically feasible for them to build it.”
Mrs. Brennan added, “I don’t think planning is all about sewerage. We need to consider other items e.g. what works well for people.” Mr. Fenton asked, “The question is – how do we draw that line? That is why we have the zoning and subdivision regulations. There are property rights and neighbors rights.” Mrs. Brennan replied, “I understand that. This could probably work. You could probably fit an elephant in your living room, but should you?”
Mr. Fenton said, “We may be hard pressed not to approve from a legal standpoint because they are going to win the lawsuit. Perhaps they can get it to a place where it ends up closer and is something that the neighbors can live with.” Mrs. Brennan added, “I would hope that they take the high road.   We have danced forever and ever and ended up nothing.”
Atty. Ohrenberger said, “I concur with Pat. If you don’t like it just pick the number and we will figure out what we will do.”
Mr. Walter called for public comment. David Wessman, 584 First Parish Road, said, “The main issue aside from all the water is that once it is approved we will have to live with the repercussions.   The land is being sold by two families who live next to each other and they are the only ones to profit yet the access road is being put up between our property and one of the sellers. They certainly don’t seem to have a problem with someone having a mile and a half long driveway so I don’t see how they can use the argument against moving that into their own yard.”
Mr. Walter said, “I just want to make sure that you know that we are not approving anything tonight. We are just deciding on the number of lots. There is a long way to go with a lot of hearings before we decide on the final plan.”
Mr. W. O’Malley, 27 Pheasant Hill Drive, asked, “That lot down there next to the open patch. Is that a full acre and is there was a building restriction on it? I know that was discussed the last night and there was supposed to be a letter about it. I know they dropped the lots down to 13 from 14, but how is that tying in?” Atty. Ohrenberger said, “The answer is that there will be no improvements to that area.” Mr. Fenton said, “So that open field will end up staying that way.” Mr. O’Malley asked for clarification on the measurement of the lot being discussed.   Mr. Walter replied, “Where there were two now there is one.”
Mr. Jim Barclay, 548 First Parish Rd., said, “At the last two meetings I thought the septic was going to be moved to the center of the development.” Mr. Walter said, “ We are not there. We are just trying to get to the number of lots. We would like the applicant to consider that because it would take it away from the abutters and it could potentially open up some recreation space.”
Mr. Wessman said, “The comment was made that all the water will shed to First Parish Rd.   How can they send it all that way? When they build it up also what does that do to the trees that are there? Every tree on this entire acreage will have to be removed because it won’t survive being buried so deep. I don’t understand how the open space piece plays into that.   Even at the first meeting they said that if they don’t go forward with the Open Space they will go forward anyway.   They did not want to spend any money to go forward with this now so they didn’t perc any of the areas that may be wet. We hear all kinds of conflicting messages on this. Can someone define the intention of the open space to do a Flexible Open Space Plan?”
Mr. Walter said, “The goal is to create undisturbed buffer around the perimeter. Abutters will see more of the natural habitat.” Mr. Wessman replied, “None of this will be natural if they mound it up to do the drainage.” Mr. Walter said, “As designed now, you are correct.” Mr. Fenton said, “With a Flexible you can change the lot requirements. We have not looked at those details yet. We have said that we don’t want that septic system right on top of the abutting properties. This is just the first cut. The challenge tonight is – how many units? A conventional subdivision could be worse than a Flexible.” Mr. Wessman said, “So in reality it could be worse.”
Atty. Ohrenberger again asked the Board to just vote the number.
There was a discussion about the size of the entire parcel. Mr. Walter thought it was about 18 or 19 acres. Mrs. Kattie O’Malley, 27 Pheasant Hill Drive, said, “That little spot that they don’t have anything built on or shown on is 5.65 acres so if you are talking 18 acres you are really talking about 13 acres being developed with 14 homes. Lot 17, on the original plan, is listed as 5.65 acres. Mr. Fenton said, “Lot 17 has a skinny connector to the top.”    Mrs. O’Malley said, “I don’t think that the question about deed restriction was answered. If it has a deed restriction on it then they can’t build on it.” Mr. Walter explained what part of that lot could be built on under the latest plan.
Mr. Dick Kisker, 87 Grove Street, said, “The land directly behind my property has just put on the market. I know it is not part of this plan because it is in separate ownership so there will be another home abutting this property. So we are talking about an additional buildable lot. It is directly behind 87 Grove Street (corner of Grove St. and First Parish Road).   For thirty years this was not a buildable lot but suddenly it is. There are tremendous water problems now. The water flows across Grove Street. When you are talking about 14, 13, 12 lots you should also consider this new home. I want to go on record to make sure that is part of your thought process. I agree with Pat – it is not just what is in the bylaw.    Potentially 13 families will be moving in. How many abutting families are effected? It is more than 13. It should be twice that number including the folks across the street on Grove Street. This should be part of your thought process.”
Mr. W. O’Malley, 27 Pheasant Hill Drive, said, “Regarding the Flexible, it is supposed to be a benefit to the town and the abutters. Who is benefiting from this type of plan? Certainly not us – the abutters or the town in general.   They are still working around that deed restrictions. All I will be looking at is a 7’ mound and that wall. People on First Parish Rd. will be looking at detention ponds. People on Grove St. will be looking at big houses.”
Atty. Ohrenberger said, “Are you ready for a vote? We do not want to take any more time from the Board.” Mr. Walter replied, “ I come up with 10.” Mr. Limbacher said, “I have 10.4.[He explained his reasoning for that number.] That is where I am.”
Mrs. Brennan asked, “Why did you put the long driveways with houses at the far end near the abutters.” Mr. Fenton said, “They have a building envelope. They need to have the width through the house.” Mrs. Brennan offered some ideas of how the layout could possibly be changed.
Mr. Limbacher said, “I think about 13 acres of buildable area and I took 80% of that which leaves open space.” Mr. Walter said, “I see 10 or 11. I don’t know what everyone else is thinking.” Mrs. Chisholm said, “I say 10 but I have no mathematical logic behind it.”   Mr. Fenton said, “Likely 10-11. You can come to a number in a couple of different ways. Once you move the septic you will create buffers.”
Mr. Walter said, “That is what we want to see with Flexible – more buffers. I would round it up to 11.” Mr. Limbacher, Mr. Fenton, and Mrs. Chisholm indicated that they agreed with Mr. Walter.
MOTION:   Mr. Fenton Moved to approve the Conventional Density Sketch Plan for the Definitive Flexible Open Space Subdivision at 556 & 568 First Parish Road, Scituate, Mass. dated March 9, 2007 with revisions through March 13, 2008, with the number of lots reduced to eleven (11) buildable lots. Applicant: John E. McGrath, Eastern Atlantic Financial. Owners: Martha Nugent, Trustee of Nugent Management Trust; Bernard E. Gray and Natalie E. Gray. Motion Seconded by Mrs. Chisholm and the vote was as follows: Mr. Walter, Mr. Limbacher, Mr. Fenton, and Mrs. Chisholm voted in favor of the Motion. Mrs. Brennan voted against the Motion.
Atty. Ohrenberger said, “If we could continue this to April 24th for five minutes. One of two things will happen – a) we will ask to withdraw this; or b) ask for an adequate continuance to redesign it. Nothing will actually happen at that meeting. We would like to just put in a letter stating our intent rather than having to actually appear.”
MOTION: Mr. Limbacher Moved to continue the three (3) Public Hearings (Definitive Subdivision Plan Public Hearing; Flexible Open Space Development Special Permit Public Hearing; Scenic Road Act Public Hearing) regarding property at 556 & 568 First Parish Road to April 24, 2008 at 7:30 P.M. and Move to extend the time to file the Decisions regarding this project with the Town Clerk to May 15, 2008. Applicant: John E. McGrath, Eastern Atlantic Financial. Owners: Martha Nugent, Trustee of Nugent Management Trust; Bernard E. Gray and Natalie E. Gray. Motion Seconded by Mr. Fenton and the vote was a unanimous vote in favor of the Motion by the members present. Mr. Walter, Mr. Limbacher, Mr. Fenton, Mrs. Brennan, and Mrs. Chisholm voted on the Motion.
Mr. Walter said, “Just so that everyone knows what we did – we approved a Conventional Density Sketch Plan with 11 buildable lots. When they were here last it was 14 lots. They came back with 13 lots but we still thought it was too high so we reduced it to 11 lots.
OLD BUSINESS, NEW BUSINESS, CORRESPONDENCE, ADMINISTRATIVE ITEMS, UPDATES, ACCEPTANCE OF MINUTES (May 24, 2007, January 24, 2008, February 28, 2008)
Form A Plan 45 Booth Hill Road: The applicants, Todd Amelang and Chris Commeau, were present with their attorney, Brian Sullivan.
Atty. Sullivan said, “Chris and Todd are owners of the property. The first parcel was acquired in 2006 and the second parcel they acquired by virtue of a judgment of the Land Court in Jan. 2008. They have the required frontage. We have talked to Dave Ball of the Historical Society and with members of the Historical Commission regarding the tomb. [Atty. Sullivan referred to a Form A Plan on Judge Cushing Road where an easement was given for an old cemetery.] Here there is just a tomb. Historically tombs were used to store bodies in the cold months waiting for the thaw. Then they would be interred in the ground. There are no bodies in the tomb, as far as we know. After we get the ANR we will go to the Board of Selectmen to grant the Town a historic easement so the area will be maintained. I had a discussion with the Town Planner about the advantage of coming before you before we go to the Selectmen.”
Mr. Fenton said, “All we are doing with this plan is the lot lines right now. You are just laying out for us your path forward.”
Ms. Harbottle said, “It is great that they are finding a way to preserve the access to the tomb. There are no descendents that have claimed ownership to this property.”
Mr. Limbacher asked, “So you will retain ownership but give the Town an easement?” Atty. Sullivan said that was correct. Mr. Limbacher continued, “Is there a non conforming issues here?” Atty. Sullivan replied, “No both lots are conforming. I think the plan is for two single family homes. They could bulldoze the tomb but they won’t.”
MOTION: Mr. Fenton Moved to endorse as approval under the Subdivision Control Law Not Required a plan of land in the Town of Scituate located at 45 Booth Hill Road. Plan prepared for Owners, Todd Amelang & Christopher Commeau, by Aaberg Assocs. and dated February 19, 2008. Mrs. Chisholm Seconded the Motion and the vote was a unanimous vote in favor of the Motion

FORM A PLANS 15-21 MARSHFIELD AVENUE; 18-20 WEBSTER STREET. APPLICANT: MICHAEL MCGONIGLE. OWNER: J.P.D. NOMINEE TRUST
Form A Plan 15-21 Marshfield Avenue. Applicant: Michael McGonigle. Owner: J.P.D. Nominee Trust (Jos. M. Davis, Trustee). The surveyor from Coneco Engineers explained the plan to the Board. He said the plan was a perimeter plan and did not show a subdivision of land. Ms. Harbottle agreed that it was a perimeter plan and perimeter plans are often used to grandfather the use of a property. If zoning went to residential use the business use would remain.
MOTION: Mr. Fenton Moved to endorse as Approval Under the Subdivision Control Law Not Required a plan of land in the Town of Scituate located at 15, 19, & 21 Marshfield Avenue. Plan prepared by Coneco Engineers, Scientists & Land Surveyors for Owner: J.P.D. Nominee Trust (Jos. M. Davis, Trustee) and Applicant: Michael McGonigle. Plan dated March 20, 2008. Mrs. Brennan Seconded the Motion and the vote was a unanimous vote in favor of the Motion.
Form A Plan 20 Marshfield Avenue. Owner: Thomas J. Nicholson, Applicant: Thomas J. and Karin E. Nicholson. There was no one present representing the applicant. Ms. Harbottle said the plan was a perimeter plan for zoning protection. MOTION: Mr. Fenton Moved to endorse as Approval Under the Subdivision Control Law Not Required a plan of land in the Town of Scituate located at 20 Marshfield Avenue. Plan prepared by E.E.T., Inc. for Owner: Thomas J. and Karin E. Nicholson and Applicant, Thomas J. Nicholson. Plan dated March 26, 2008. Mrs. Chisholm Seconded the Motion and the vote was a unanimous vote in favor of the Motion.
Form A Plan 22 Marshfield Avenue. Owner/Applicant: Bonnie J. Brown and Stephen J. Irish. There was no one present representing the applicant. Ms. Harbottle said that the plan was a perimeter plan for zoning protection. MOTION: Mr. Limbacher Move to endorse as Approval Under the Subdivision Control Law Not Required a plan of land in the Town of Scituate located at 22 Marshfield Avenue. Plan prepared by E.E.T., Inc. for Owner/Applicant: Bonnie J. Brown and Stephen J. Irish. Plan dated March 26, 2008. Mrs. Chisholm Seconded the Motion and the vote was a unanimous vote in favor of the Motion.
Form A Plan 30 Marshfield Avenue. Owner/Applicant: Stephen D. & Elizabeth Tripp. There was no one present representing the applicant. Ms. Harbottle said that the plan was a perimeter plan for zoning protection. MOTION: Mr. Fenton moved to endorse as Approval Under the Subdivision Control Law Not Required a plan of land in the Town of Scituate located at 30 Marshfield Avenue. Plan prepared by E.E.T. Inc. for Owner/Applicant: Stephan D. & Elizabeth Tripp. Motion Seconded by Mrs. Chisholm and the vote was a unanimous vote in favor of the Motion.

DEER COMMON SUBDIVISION: Mr. S. Bjorklund, the developer, was present.   There was no appeal of the subdivision approval. Motion: Mr. Limbacher moved to endorse the Deer Common Subdivision Plan. Mrs. Brennan Seconded the Motion and the vote was a unanimous vote in favor of the Motion. _______________________________________________________________
UPDATE ARTICLES FOR TOWN MEETING MARCH 29, 2008
The Board discussed the Articles for the Annual Town meeting as follows:
Article 15 (Revolving Account): Mrs. Brennan will present this at Town Meeting. Ms. Harbottle said that the application fees are deposited in this account and things like postage and legal advertisements are paid from this account.
Article 25 (Wind Energy Conversation Systems): Mr. Limbacher will not be present at Town Meeting. Mr. Fenton will make the presentation.
Article 26 (Humarock Overlay District): Mr. Walter will present this Article. The Board discussed the proposed amendment (16’ minimum setback on first floor for building with a business and a maximum setback of 25’ for building containing a business use on the first floor). The Board talked about the measurements. It was noted that someone from the audience may want to amend the article.      Mr. Limbacher thought the Board should present the Article as it was presented to the Selectmen. If someone from Humarock wants to change it then they can try to do that at Town Meeting. The members preferred to use the original wording of a minimum front yard of 10’ and a maximum of 20’. Ms. Harbottle will prepare a new Motion with no amendment.
Article 27 (Humarock Village Residential Overlay District Map Change). Mr. Walter will present this Article. Ms. Harbottle will make sure that the correct map is being used. She had made a large number of copies of maps as handouts at Town Meeting.
Article 28 (Humarock Zoning Change Map): Mr. Fenton said that the Accessory Dwelling Hoc Committee does not have a problem if this map is indefinitely postponed. John Cronin also agrees. Motion: Mr. Limbacher Moved to recommend that Article 28 be Indefinitely Postponed at the March 2008 Annual Town Meeting. Mr. Fenton Seconded the Motion and the vote was a unanimous vote in favor of the Motion.
ARTICLE 29 (Stormwater Bylaw): Mr. Fenton will present this Article at Town Meeting. Mrs. Chisholm said, “I was very disappointed when Pat, Laura and I went to the Selectmen to discuss this Article. We were ignored.    They did not listen to us. Their minds were made up.” Mrs. Brennan said, “I was bothered by statement that it was not being passionately defended. It was just obvious that it was going to be indefinitely postponed by the Selectmen. Mr. Fenton said he was also upset by the Selectmen’s position on this article.    Mr. Limbacher said, “I understand what your position is even if I am on other side of fence.”
Article 30 (Greenbush Overlay): This Article will be indefinitely postponed. It should not have been part of the Warrant in the first place.
Article 31 (Sex Offender Bylaw): Ms. Harbottle said that apparently the Atty. General has problems with the type of wording proposed for this Article so the Article will likely be indefinitely postponed.
Town Meeting Procedure: Ms. Harbottle thought that the Moderator will let     some people from Humarock speak to the Humarock articles. Keith Jansen, Ad Hoc Committee, will likely speak on behalf of the Committee. Mr. Fenton said he would be glad to offer a minute of his time for others to speak. Ms. Harbottle said she would check to see how many residents really want to speak and discuss this with the Moderator. The Board signed the Motions/Planning Board reports. Ms. Harbottle described the handouts she had prepared for Town Meeting.