| Home | About Scituate | Town Hall | Calendar |
Printer Friendly Layout News/Events - Meeting Minutes
Scituate Planning Board, June 12, 2008 SCITUATE PLANNING BOARD MINUTES JUNE 12, 2008 Members Present: Mr. Walter, Mrs. Chisholm, Mr. Limbacher, Mr. Fenton, Mr. Vogel, Mrs. Brennan (Assoc.) ACCEPTANCE OF AGENDA: Motion Mr. Limbacher Moved to accept the amended agenda. Mrs. Chisholm Seconded the Motion and the vote was a unanimous vote in favor of the Motion. INFORMAL DISCUSSION WITH DEVELOPER PAUL CLEARY RE MIXED USE SPECIAL PERMIT 50 COUNTRY WAY Mr. Paul Cleary and Mr. Stephen Cleary were present. Mr. Chris Ford was also present. Mr. P. Cleary introduced himself and spoke about a mixed use project he was doing in Cohasset. He said he met Chris Ford, the owner of 50 Country Way, and he and his brother have been considering developing the property at 50 Country Way as a mixed use project. He said that he had incorporated some previous ideas for the property and he said his project would meet Scituate's bylaws. Mr. Cleary also described a smart growth project in did at the Canton Center Overlay District, a project in Stoughton, a Cohasset LIP project, and work in Stoughton center (explained work he did in Stoughton). He said that he and his brother have experience of what works near transit and that he sees an opportunity in Greenbush - a tremendous long term opportunity to bring a village into the Greenbush area. Mr. S. Cleary said he grew up in Milton and in Marshfield and that he was very familiar with Scituate and Greenbush. He explained that he and his brother had a meeting with the Design Review Committee where they received a great deal of feedback. His first plans had 30 units but now the number has been reduced to 27 units. He said he was very good with village business overlay district development and that he wants to do something that fits the market. Mr. Cleary spoke about the benefits of the train He said he wants to get input from everybody so that he will know what everyone likes and what changes they would like to see. Mr. Cleary said that he hoped to get input tonight from the Board and then he would go back to the DRC for another meeting before submitting a formal application. Mr. Walter said, "We encourage these early conversations. We don’t want you to spend a lot of money on something that we don’t like. We are pleased that you are here. Please talk about the specifics." Mr. P. Cleary said, "The size of the parcel is an acre and a half. It is right next door to Morning Glories. It is the gray commercial mixed use building and then the open space in the back of that building.. We would like to put condos there. It is right next to the train. It has narrow frontage on Country Way because of the subdivision done over the years. In the rear the MBTA has started some work. There is a paved path behind the liquor store, over to Post Office and then out to Duncan Donuts." Mr. S. Cleary said, "The bike path ends at our property and you can walk to Duncan Donuts and the Post Office. There was talk of having a stairway to the Stockbridge Road bridge but the T dropped that idea because of insurance and the handicap accessibility. We have looked to see how we could extend the path around the property and make a connection to the sidewalk on Stockbridge Road. We do not own the Morning Glories property, but we will work with them.. [Mr. Cleary explained where the parking would be between their parking and Morning Glories.] They could use our parking and we could use theirs at night. It should be a smooth situation. We would like to clean up that corner at our expense. We think they should be a vital part of the project." Ms. Harbottle said, "We have been talking about the density at 18 units per acre and with that they would have to provide some kind of public benefit. You need to think about it. Perhaps infrastructure issues; more affordability; save that old house or move it someplace close by. They are obligated to do some landscaping in the back (put in some buffer) and near the corner of Stockbridge Road. There is lighting required." There was a brief discussion about the density of the proposal and Ms. Harbottle said it would have to meet the requirements in the bylaw. Mr. P. Cleary said, "Our original building broke the rules e.g. it was too tall. We went back to the drawing board and looked at the bylaw. Some things make sense because of the train. The higher up you are the less noise you get from the train. We will try to keep in the envelope of the bylaw without asking for any variances. We see public benefits as being part of any project in town." Mr. S. Cleary said, "The site is not pretty. We need to make it pretty to make it sell." Mr. P. Cleary added, "We need to supplement what the town and state has done. We agree that there will be public benefit." Ms. Harbottle said, "In the bylaw if you go over 16 units then you have to do something extra." Mr. S. Cleary replied, "We all agree that there is a public benefit opportunity here. It is very important." Mr. P. Cleary said, "Coming back to the residential building - we try to keep our buildings on a smaller scale. We have a 12 unit building with 4 units per floor with 2 bedrooms and 2 baths. We will have elevator but not underground parking. We want to bring a saleable product to the market. There is a certain market price that we are trying to get. We know we are not the Harbor. Here we are overlooking the train ." Mr. Fenton said, "We require some affordability." Mr. P. Cleary said, "Two units per building." Mr. Fenton asked about property boundaries and asked for information about the traffic circulation and the one way loop. Mr. P. Cleary said, "That is for fire access. It is not a road but will be hard packed." Mr. Fenton said, "So that is for emergency vehicles but not a road. Mr. Cleary showed Mr. Fenton the proposed parking spaces and said that he had been working on the fire access. Mr. Fenton said, "Think about having it look like a parking boulevard and not a parking lot. Green it up substantially - trees, trees. So I want to give you that to think about. Talk to me about the Country Way facing end of the retail building. What happens there? Is there access from Country Way." Mr. S. Cleary replied, "Yes, and that came from the DRC." Mr. P. Cleary described the front skinny end of the building and what one would see as you come over the Stockbridge Bridge (the front of the building and the retail stores.) Mr. Walter said, "One of the benefits is that you will have traffic from Morning Glories." Mrs. Chisholm said, "Open space - I am thinking of actual open space e.g. a courtyard effect. I do like the retail building the shape of the roof etc. But the residential building is flat and long." Mr. P. Cleary discussed the roof line. He said, "We are trying to keep to the 40’ and if there is a third floor we need a setback. I understand what you are saying. We are not sure about your 40’ height. We had better roof lines but it was 44’. I envision different heights. I was looking at different shapes and sizes but we have to consider the scale. We have been wresting with this for months." Mrs. Chisholm said, "I really like the retail - if all the rest were the same.... These will be condos." Mr. Limbacher said, "I was at the DRC meeting I am pleased with what I am seeing now. The buildings are more alike than before. It is a difficult property. You own three quarters of the corners. I am not sure that I agree with Donna about the open space courtyard. I like Mark’s idea about the roadway. I am pleased in terms of what I see. I will let the experts look at the windows, shadows etc. e.g. DRC. Yes, it needs some tweaking, but not wholesale revamping." Mrs. Brennan said, "I will agree with Donna – add one bedroom to the bottom floor so you could create a bump in for a courtyard. Given the setting – bridge, train – it would be nice to have a little oasis." Mr. Walter asked, "How about the roof top for open space?" Mr. P. Cleary replied, " We have three different designs of the roof line. We could bring them all to the DRC and get their input rather than just show the one tonight. I had not thought of a roof deck here." Mr. James Marathas spoke on the roof lines. He said, "We erred on caution and cut it down to 40’. We could do a hip roof and still do the 40’ to the median. We actually preferred that design, but the language in the bylaw was kind of a gray area. I would like to speak one minute on the open space – we did a development in Canton center which is very much like this one and we have a gazebo and no one uses it. However, we have a sidewalk that runs around the entire development and the sidewalk gets used by everyone in the development. All day long you see people walking along the sidewalk. The gazebo looks attractive but nobody goes out there. We will be doing landscape design." Mr. Fenton said, “Linear corridors are becoming highly popular throughout the country. Think about that. I like your idea about the trail ideas and I want to hear more about that. It could be used for emergency access - perhaps with bollards and a swing gate. It could be connected into the greater pathway system. Again – green up the parking lot by creating a boulevard with trees.” Mr. Walter said, "Your residential units facing parking are harsh right now. Perhaps you could put more variety in your residential to soften some of the design aspects. Without sacrificing the number of units you might be able to put a couple more units in the building out front.” Mrs. Brennan said, "I did not mean the courtyard to be a destination but just a green space." Mr. P. Cleary said, "We like the hill even though it is not our land. When trees are added to that hill it will be helpful to the residents. The rear decks will be facing that hill." Mr. Vogel asked, "Are Morning Glories into this?" Mr. Cleary said, "We have just had an introduction but not real discussion with the owner. We do want to meet with him so the two properties can work together. We have been trying to think like the idea of Morning Glories. I have showed the plans to Charlie Reynolds and the Morning Glories owner." Mr. Vogel discussed the drive thru lane of Morning Glories. Mr. Cleary discussed the existing traffic patterns in the vicinity of Morning Glories. Mr. Vogel asked, "Will the parking spaces be designed for the residential units and for retail?" Mr. P. Cleary said, "The shared parking concept is usually used in these type of developments. Often the owner will buy a spot if he is in a two bedroom. The overflow goes to the commercial at night and vice versus. We hope people will not own cars. I think that it will end up being one car + alternate transportation." Mr. Walter said, "Thank you for coming in. We look forward to seeing you again. Perhaps your next stop is back to the DRC. We would be glad to have another informal discussion with you." Mr. Cleary said, "We will definitely work with the DRC." FLOOD PLAIN & WATERSHED PROTECTION DISTRICT SPECIAL PERMIT PUBLIC HEARING 85 KENT STREET The Owner/Applicants, Mark and Megan Gajewski were present along with their designer, Julie Johnson. Mrs. Julie Johnson said, "The home was built in the 1950's and has been damaged in storms like the Blizzard of '78 and the storm in 1991. They want to take the house down and build a new home farther away from the water and the marsh. It is in the flood zone. They will put it higher than the flood zones. First floor elevation will be 17’ (foot or two over flood zone). We filed with the Conservation Commission and we have met with Neil Duggan. It will be slab on grade for the garage. [Ms. Johnson showed the Board the area of filling and the area of regrading.] The height will be about 36’ to the ridge. If there is any regrading we would still be able to meet the 40’." Mr. Fenton read the memo from the Traffic Rules Committee. Ms. Johnson explained where the driveway would be placed and she said that the Gajewskis would like to have a circular driveway so they don't have to back out onto Kent Street. The driveway will be a gravel driveway. The only pavement is on the town section at the road edge. Ms. Harbottle said, "The proposal will change look of the house but will elevate it and that is a good thing." Mr. Limbacher said, "Traffic is a concern with backing out onto Kent Street." Ms. Johnson that was why the applicants want a circular driveway. Mrs. Brennan mentioned an abutting driveway and asked if there had been any discussions about having a shared driveway. Ms. Johnson said it had been discussed. Mrs. Chisholm said she had no comments. Mr. Vogel said he liked the proposal. Mr. Limbacher said he had no problem with it. Mr. Walter asked if it would effect the natural drainage patterns. Ms. Johnson said, "There are very sandy soils here. There is a retaining wall over here and some regarding over here. If a drywell is needed it will be in front but the engineer did not think it is needed." Ms. Harbottle said, "The Board needs to think about the connection with the abutters." Ms. Johnson said, "They are talking about it." Mr. Walter said, "It does not effect this application.". Mr. Fenton said, "We could have a Condition. There is a lot of change when you look at the topography". The Chair called for public comment. There was none. There were no further questions or comments from the Board. MOTION: Mr. Limbacher Moved to close the public hearing for the Flood Plain & Watershed Protection District Special Permit for 85 Kent Street. Mrs. Chisholm Seconded the Motion. The vote was a unanimous vote in favor of the Motion. Mr. Walter, Mrs. Chisholm, Mr. Limbacher, Mr. Fenton, and Mr. Vogel voted on the Motion. MOTION: Mr. Limbacher Moved to approve the Flood Plain & Watershed Protection District Special Permit for 85 Kent Street with standard conditions. Mr. Vogel Seconded the Motion. Discussion: Mr. Walter said, "We should say that it will not effect the natural drainage conditions." Mrs. Brennan said, "We should add a Condition about the hours of construction.” MOTION AMENDED: Mr. Limbacher amended his Motion and Mr. Vogel again Seconded the Motion to add Conditions regarding the hours of construction and a statement regarding that any improvements shall not effect the natural drainage patterns of the water course. The vote on the Motion was a unanimous vote in favor of the amended motion. Mr. Walter, Mrs. Chisholm, Mr. Limbacher, Mr. Fenton, and Mr. Vogel voted on the Motion. CONTINUATION OF TWO CONCURRENT FLOOD PLAIN AND WATERSHED PROTECTION DISTRICT SPECIAL PERMIT PUBLIC HEARINGS RE 114 AND 118 EDWARD FOSTER ROAD (DOHERTY) Mrs. Doherty, the owner, was present along with her attorney, Michael Bliss, her engineer, Paul Mirabito of Ross Engineering, and Lester Smith, a Coastal Oceanographer. Mr. Walter read aloud the Agenda item and he said, "We had a good discussion at our last meeting." Atty. M. Bliss said, "I will start tonight by touching on a couple of the issues that we talked about last time in order to furnish more information. Then I will turn it over to Les and to Paul Mirabito and to Maryann. The first point that I want to make is as you know in our application we pointed out our position that we don’t think that these lots are within the town’s Flood Plain District since the District really uses the 10’ contour. The 10’ contour is the correct boundary of the District and if you look at the 10’ contour we are not within the District. I want to bring to your attention the first FEMA flood map.[Atty. Bliss gave the Board copies of the first FEMA flood map.] This is the 1977 FEMA flood map and it shows what FEMA thought the conditions were in 1977. It was based on 11’ EL. You can see that the area we are talking about on Edward Foster Road is not within the 11’ flood zone. So this is an illustration of what we think this is the correct interpretation of the flood plain map. The other point I want to make about the map is that it is my understanding that the previous Building Commissioner had also taken a position that the boundary of the Flood Plain District was the 10’ contour.” Atty. Bliss continued, “At the last meeting there was some discussion about the Marinelli case in Humarock and we went back and looked at that decision and a couple of other Board decisions in this immediate area. I want to review several of those with you. The first one is the January 2008 decision with respect to the former Young’s Boat Yard. [Atty. Bliss gave the Board copies of the decision regarding Young's Boat Yard.] This Scituate Marine Park is right across the street. The elevations of the Marine Park are below the elevation at Edward Foster Road (several feet below), and in addition to that they are way below the elevations on our site. So wherever you take the base flood – whether you would take FEMA at 11’ or whether you take some other figure, that site would have several feet of standing water on it in a flood event. Nevertheless, the Board made a finding that it was not subject to flooding. They will also have filling there to raise the buildings up as opposed to the driven piles that we will have. So it is difficult for us to see how that with three or four feet of standing water is not flooding at the Marine Park. It is hard to see how our site which doesn’t have any standing water and is subject to over wash would be considered flooding. I want to add that I recognize that the Marine Park is a public park and the Board’s decision talks about public purpose. I would suggest that really is irrelevant because the bylaw provisions ask the Board to make a factual determination about flooding or not and public purpose does not come into the bylaw. So I would suggest that for basic fairness and under the fundamental notion of equal application of the law that would require that our proposal should also get a finding of no flooding. Again, if several feet of water on the boatyard site is not considered flooding then our site should not be considered as flooding.” Atty. Bliss continued, “The second decision that I wanted to review is the Marinelli case. [Atty. Bliss gave the Board copies of the Marinelli decision.] The Marinelli case is very similar to ours. Actually Marinelli is lower. Marinelli is up to 15' and ours site goes up to 17'. The lot is similarly subject to over wash. I would note that although your decision said that Marinelli house was not in the velocity zone but Paul Mirabito has looked at that using the then applicable FEMA map (1992) and he thinks that the house was in the velocity zone. As in our case, Marinelli had been denied by the Conservation Commission and had to go to DEP for approval and it took him some years to do that. So that is similar to our case. In our case we actually went to DEP and then we had to go back to the Conservation Commission for approval under the local wetlands bylaw which we did months ago. We meet all the FEMA standards, the State Building Code standards and all of the Wetlands Act standards. See paragraph 5 of the Marinelli Decision on Page 3 (I highlighted this on the copy that you have) – you can see that the Board for this case made a determination based on all the evidence that the land was not subject to flooding under the Scituate Bylaw. So again I would say that in fundamental fairness as well as the notion of uniform application of the law should require similar results.” Atty. Bliss continued, "It is important to be clear what the velocity zone is. It is one of the zones that FEMA creates – where there will be some wave action so addition elevation is needed beyond what would be the still water elevation. So in this case the velocity zone requires the house to be elevated further which we have met. First these designations (velocity zone, AO zone, etc.) are designations that FEMA has created for their own purposes – for where Flood Insurance is required and where it isn’t. They determined them to determine the premiums that will be charged for structures in different zones and they created them to trigger different standards in the State Building Code so if you are in the velocity zone you will have to meet certain standards which have been designed to create safe structures. If you are not in the velocity zone you have to meet other standards. These are designations created by FEMA for its own purposes. Also, it is important to understand that FEMA does not, in any way, shape, or form, prohibit construction in the velocity zone. As a matter of fact they designate particular technical construction standards that are required in order to safely construct in the velocity zone. Finally, and most importantly, the FEMA designations are not incorporated in the Town of Scituate Bylaw. This bylaw speaks of flooding. It does not speak of flooding as defined by FEMA. The Town could, if it wanted to, incorporate the definition for maps into the bylaw but it hasn’t done that. If you look at S480 it creates the Flood Insurance District and it says that the Flood Insurance District is wherever FEMA says it is. That section of the bylaw specifically incorporates the FEMA map, but S470 does not. So for legal matters the Town can’t rely on these FEMA designations for making distinctions on projects.” Atty. Bliss stated, “The last point I want to make is about the project that is currently under construction in our immediate vicinity and again I have some illustrations. The pictures that I just handed you are of a project at 132 Edward Foster Road which is two or three doors up from us. [Atty. Bliss gave the Board pictures and explained them in detail.]. The last one is the existing house in 2004 (800 sq. ft. ranch) and you can see that a story and a half is added to it which is substantial reconstruction. From these photographs it would appear that this is substantial improvement and it should have come before this Board for a Special Permit but as far as I know it did not. In any event the project is going forward now presumably under a building permit. The significance is that this structure is as well in the velocity zone. I would say that this shows that under this bylaw (SD470) there is no prohibition of construction in the velocity zone. I would also point out that this project is not on piles so it does not meet the velocity zone standards. So it is at a much greater risk of damage. Again, I would say that in basic fairness and with uniform application of the laws it would require that we receive our permit.” Atty. Bliss concluded, "Let me just finish by mentioning that I spoke about fairness and equal treatment under the law. I just want to add that the notion of equal treatment under the law has changed recently by the U.S. Supreme Court when it decided a case in 2000.[Atty. Bliss gave the Board copies of an article from the Boston Globe on this subject.] The Supreme Court decided that the notion of equal protection applied to applicants for land use permits. Applicants for land use permits who are not treated the same have a right to go to court and claim damages. [Atty. Bliss talked about a case in Hopkington which was settled for $2.5 million dollars in 2006.] So the point I am saying here is that the Constitution guarantees equal protection for land use projects. At this point I will turn the presentation over to Lester Smith and Paul, in turn. Lester is a senior scientist with Epsilon Assocs. He is a coastal oceanographer with almost forty years of experience. He has worked in both the private and public sector and has worked with NOAA and Mass. Coastal Zone Management. He is very qualified in coastal geology.” Mr. Lester Smith provided the Board with details about his background and Epsilon. He put up colored picture on the easel and said, “It turns out that Maryann Doherty’s project is the oldest on-going project that we have. That tells you a little bit about all the regulatory hoops that we have been through with this project. We have gone to MEPA and the trigger for that was the Superceding Order of Conditions that was required under DEP for working on a barrier beach. This is pretty unusual for a single family house. We filed with MEPA an Environmental Notification Form. We submitted a draft Environmental Impact Report. During that review we interacted with various state and local agencies. The project has evolved and has been modified. The project has been down sized to smaller houses with much less disturbance to the land, to the existing vegetation, and much less impact than some of the existing houses. [Mr. Smith showed a map of the barrier beach area.] There are only two lots left in this area as most of the lots here are developed. [He showed the lots and others in the area such as the Marine Park and he described the barrier beach and the seawall areas.] Because of the land form it means that this barrier beach will not be moving land wise. The maps we have studied showed that it has actually moved seaward. We have had to deal with the State Wetland Protection Act which talks specifically about storm damage coastal flood control and also speaks to transport over wash properties. [Mr. Smith described work he did with CZM back in the late 1970’s on various programs and regulations.] In terms of flooding those regulations talk to maintaining the land form to assure that you will not disturb the land form. That is consistent with what FEMA is doing e.g. put houses up on piles. After '78 houses were put up on piles rather than solid foundations which means less damage. With piles vegetation can grow under the houses. Under the State Wetland Protect Act storm damage prevention and flood control are protection by the type of designs that we are using here.” Mr. Smith continued, “ I have looked at comparable projects in this area e.g. adjacent property to the north. That house is much further seaward than we are. [Mr. Smith put a plan on the easel and explained where the Doherty house is located and where abutting homes are located in relation to the Doherty house.] The Marinelli house in Humarock (I looked at that today to refresh my memory) is right on a coble berm. We are much better off. Marinelli is right on the coble berm and the water is right there. It is much more exposed. To summarize: here is the land form; here is the seawall, there are minor changes along here; minimize impacts to dune; and there is a requirement that any vegetation disturbed has to be restored after the project is constructed.” Mr. Mirabito asked if the Board had received any additional correspondence from any town departments. Mr. Walter read aloud the memo from the Fire Chief stating that there was not a hazard to public safety because of this proposal. Mr. Mirabito showed the Board other plans he obtained from files at Town Hall and from the Harbormaster Office and he explained the location of the Doherty property, the location of the seawall and various elevations relating to the property. Mr. Mirabito showed the Board a series of photos taken from across the Harbor noting the house that is currently under construction and the boatyard. Mr. Mirabito explained the photos in detail and mentioned various elevations on the boatyard property. One photo was of the house where Marian Doherty lived in. Mr. Mirabito explained that in the storms of '78 and ‘91 there was not much damage because of the seawall. He referred to a copy of the Marinelli plan showing that it is on a barrier beach with no seawall in front of it. Mr. Mirabito described the various flood zone areas of Humarock (now it is all in the velocity zone). He also explained various measurements on the Marinelli plan. Mr. Mirabito then explained the measurements for the Doherty house e.g. the first floor will be EL 23 (8’ above existing ground on piles). Mr. Mirabito said he wanted to present plans to the Board that are already on record. Mrs. Maryann Doherty spoke in detail about the history of her property and the Scituate mossing industry and showed the Board some pictures. She said that her husband’s family stated here in 1864 and they had a large family supported by mossing. Mossing was a big industry in Scituate up to WW2 when it changed. She noted the areas that were beach and marsh land years ago with two creeks going through the marsh land. Mrs. Doherty said that the Town of Scituate took a lot of her land to dredge for the inner harbor. What you see here was our land. Mrs. Doherty said her husband gave land to the town for Conservation purposes so that generations could enjoy the marsh. Mrs. Doherty explained that she has been working on obtaining the permitting for her property since 1991 and she said that she has made every change requested by the permitting authorities. Mrs. Doherty summed up her presentation by stating, "This project has been scaled down and it meets all the requirements. I have all the approvals. You people are my last step. All I ask is for a fair hearing. All I ask you to do is to look at my other neighbors in Scituate and the places that you have approved." Mr. Walter said, "Thank you. That was very thorough." Ms. Harbottle said, "I enjoyed all the presentation about mossing. I think this is a difficult situation for the Board. They need to apply the bylaw and the bylaw is aimed at protection of health and safety and property and it does not provide for new construction unless it can be proved that it is not subject to flooding. It is in the velocity zone so I don’t see how you can say it doesn’t flood. On the other hands these bylaws can be challenged legally. [Ms. Harbottle described a court case in Chatham where the SJC said it was not a taking.] In that situation the Fire Chief said that his people were endangered going out to the property in storms if there was a fire. I had a long conversation with our Fire Chief and I explained to him that if he had any misgivings that this was the time to come out and say something. He said that there would not be a problem here for safety. I think that the problem is that without that backup from the Fire Chief the case is weaker if the bylaw was challenged. It will be hard to say that there is a public safety issue. The Board approved Marinelli 10 years ago and there has been more public information available on the dangers of flooding that was not necessarily available then. Also, the Young’s Boat Yard property is a different sort of situation. It was just an approval for filling and not an approval for construction and there are a lot of public benefits issues that property. I think this is a difficult one." Mr. Fenton said, "I think, and I will paraphrase, Atty. Bliss makes six compelling points which I will try to address. One is that it is not in the flood plain because of the FEMA map which they say is incorrect. The reality is that we do have a map. I will lay out the arguments. We have a map that says, of course, that is in the flood plain. I understand that they say it is not. Number 2: I agree that the Marine Park Special Permit is not entirely the same thing as it has municipal purposes. Also there is an already existing use there. It was already being used as a marina. I find Marinelli case compelling but it does strike me that we may argue that it was flawed. There were a number of affidavits. So there is a debate on Marinelli. I find myself sympathetic that things might be looked at differently today. With regard to the velocity and that requiring different construction, I understand that different construction is needed in the velocity zone. Next – the house at 132 Edward Foster Road – I was surprised that they did not need to come here. Equal treatment under the law – is there a difference between new and existing construction?" Mr. Fenton continued, "" I am completely sympathetic to Mrs. Doherty’s position. I am glad to have heard it. I am compelled with fairness argument but on the other side I am compelled by the bylaw and where we should allow construction to happen. Are we doing our just duty to allow new construction? That is the struggle. I would love to know where the answer is based on those two competing issues. I am very concerned with fairness to the applicant." Mrs. Chisholm said, "Fairness to the applicant - this is the first time I have had to deal with that situation. I was not here on Marinelli. I am looking at the bylaw. I am at a loss. I understand both sides and I don’t know which way to go. " Mr. Vogel said, "There are compelling personal arguments and financial issues. There is an important distinction between new construction and reconstruction." [Mr. Vogel spoke about flooding in the Surfside Road area.] . Mr. Limbacher said, "I have two observations. One is that FEMA is determined by an elevation. Once you get the FEMA elevation – and that goes back to whether you can build or not - FEMA provides guidelines upon how one builds in the velocity zone and it does not make distinction between new construction and reconstruction. FEMA already acknowledges that you can build in the velocity zone. It is Marinelli all over again. Yes, the rules have changed since Marinelli. FEMA (the benchmark) says you can build in the velocity zone and this is very clearly in the velocity zone (an over wash). The third piece that I would offer – back to fairness - am I looking to come back up and provide these people with something different than I did with the neighbors or am I going to provide you with the same opportunity? Part of the area floods (yes) but not where they are putting house. I am looking to build a house in the velocity zone which is permitted by statute.” Mr. Fenton said to Mr. Limbacher, "So your interpretation is that over wash is not flooding." Mr. Walter said, "I agree with Bill.. Clearly it is not flooding by definition of water rising. This is water flowing over." Mr. Limbacher said, "Spray on Minot Beach is not flooding." Ms. Harbottle said, "Over wash has a depth to it. You have to be 2’ above." Mr. Limbacher said, "I can see the distinction between over wash and flooding. I would ask Lester to comment on the difference between over wash and flooding." Mr. Walter said, "We were given some photos of the No Name Storm in 1991." Mr. Smith said, "Over wash is usually a 2’ event. In terms of a safety issue, there is a difference between a 2’ over wash zone and a still water flooding zone. A velocity zone is different than an over wash zone. A velocity zone is where the energy of the wave is extended." Mr. Limbacher said, "The last point that I would make and it was reinforced by the Fire Chief. He says there is no difference there than anywhere else." Mrs. Brennan said, "I am looking at the bylaw and the question of over wash and flooding. The question of fairness bothers me, but what about the future property owners? We have to protect them." Mr. Walter read S470.9 aloud and he said, "This is S 470.9 (Determination of Suitability). It says - ‘not subject to flooding and not unsuitable because of drainage’ ……… It comes back to the flooding. Common sense tells me not to build a new house there but we have to work within bylaw. Do we feel that the land is not subject to flooding?" Mr. Fenton said, "If this was some land speculator would I rule differently? I am compelled by her personal story. Then there is partly what Pat said. That is in my head." Mr. Limbacher replied, "The answer is no – regardless who the applicant is." Mr. Fenton said, " I would not rule differently." Mr. Walter said, "Given where we are in the discussion - we are running behind. I want a sense of where you are." Mr. Fenton said, "We need to hear from the public" Mr. Walter asked that the public speak to new issues and not the same issues that they raised at the last meeting. Mr. Joseph Hayes said, "In listening to your description of what the bylaw says – if it is above the 10’ contour it would be out of the flood zone." Mr. Walter replied, "Not entirely." Mr. Fenton said, "The ZEO uses the FEMA map He has made a determination that it is in the flood zone and then they need a special permit. That is why this was referred to us in the first place." Mr. Walter said he would like to have this hearing continued. Mr. Limbacher asked, "What needs to be addressed if we continued it?". Mr. Walter replied, "We need to step away and think about all the information. Some of the information tonight was different than first meeting. Is it subject to flooding? Board?" Mr. Vogel said, "I think I heard Laura say that the over wash and flood zones are connected and that in the Federal regulations the over wash is considered a flood zone. I am very sure that the bylaw intention was to prohibit construction in the flood zone. I would like to study it." Mr. Limbacher said, "I have made the leap of faith." Mrs. Chisholm asked, "Are we looking at FEMA or at ours?" Mr. Vogel said, "We need to see if there is a connection. Mr. Limbacher replied, "FEMA provides two benchmarks – one is elevation and two is construction in the velocity zone. Also if you do not grant the permit you need to find one or two of those things wrong. I am not opposed to it. " Mr. Walter said, "If we agree that Neil it is in the flood zone. Then we are talking to land subject to flooding or unsuitable drainage." Mr. Vogel said, "I would like time to review it.". Atty. Bliss said, "We will be happy to work with you." Mr. Walter said, "I hope you realize we are trying to be fair." The Board discussed the time for the continuance. Mr. Limbacher said he would not be present at the June 26th meeting. July 10th was picked as the date for the continuance. The applicant agreed. Mr. Mirabito said, "I looked at the photos in the file and they are not taken at our site. How do you protect new buyers – make sure that house is built to all the building codes. I spoke to Neil. He does not believe it is subject to flooding. The prior Building Inspector would have issued the permit. We have state permits and local permits that say it is okay to build there. The application before you is just that it is not subject to flooding." Old Business, New Business, Correspondence, Administrative Items, Town Planner’s Report, Updates, Acceptance of Minutes (March 27, 2008, May 8, 2000) DOCTOR’S HILL: DISCUSSION OF PETITION FROM THE DOCTOR’S HILL PROPERTY OWNERS RE RESCIND THE PROHIBITION OF THE INSTALLATION OF UNDERGROUND SPRINKLER SYSTEMS There were a number of people from Doctor's Hill present. See sign-in list. The Chair said that the Board had received a petition from the homeowner's asking for permission to put in sprinkler systems. . A gentleman from the Homeowner's Assoc. said, "Thanks for getting other items resolved. We are here on another issue that effects the value of our property. Under the Special Permit sprinkler systems were not permitted. I spoke with Jack Ahern, Landscape Architect and he said that sprinkler systems are a no- brainer. We have young man here to speak about what sprinklers can do". Mr. Matt McNeil, maintenance contractor, gave the Board a letter and a package of information. He explained that he had written the Town Administrator explaining the benefit of sprinkler systems. He said he would be happy to answer any questions . Mr. McNeil said, "Hand held hoses are not an efficient way to water because they are impossible to control. Some area gets more water, some less. An irrigation system adjusts to the area you want watered and can be controlled to come on at good times of the day. We have a rain sensor so if it rains it will shut down the system. The system we use shuts down immediately and come back on when needed. We also have soil moisture sensors and the system won’t come on until needed. There will be individual connections to each unit." Ms. Harbottle said, "This was approved in 2000 and back then the idea was that sprinkler system would send fertilizer down the road to Reservoir. There were other conditions about type of lawn and plantings. {Ms. Harbottle referred to the Conditions about landscaping and explained them in detail.]. I don’t know what was planted. All of this was so less fertilizer was used. There was a lot of Conditions about the type of plantings and grass. I talked to Town Administrator and the Water Dept. Supervisor about this and both have pulled back from what was done in 2000. Gene Babin, Supt. Water Dept., said sprinklers were okay as long as there were water sensors. Mr. McNeil said he would give Mr. Babin all the pertinent information. Mr. Fenton read a memo from Gene Babin. He said, "I wish that our favorite developer had put in everything he should have regarding the grasses. I would like to make that happen and not go to the sprinklers. I am not hearing Gene saying that he is not concerned with runoff to the Reservoir." Mrs. Chisholm agreed with Mr. Fenton. Mr. Vogel asked Mr. McNeil if he did landscape management and the response was 'no'. He asked if there was a landscape management company employed for Doctor's Hill and the response was 'yes'. Mr. Vogel said he was curious about what grasses and fertilizer is being used. Mrs. Brennan asked if the area was flagged when it was being fertilized and the answer was 'yes'. She said, "Even if the developer had landscaped correctly that does not preclude the need for an irrigation. It is better than a hand held hose. It is more efficient. My question is – what recourse do we have to correct?" Mr. Fenton said there was $1,000 remaining as surety. Mrs. Brennan said, "Perhaps that could be used to replace the grass. Once again these people are left with a mess. What can we do to make sure that the Association abides by the irrigation requirements?". Ms. Harbottle replied, "It is supposed to be in the master deed." Mr. Fenton said, "We don’t have a way to enforce it." Ms. Harbottle said, "You can ask what the property management is doing." Mrs. Brennan said, "It is much better for runoff to have irrigation system but I don’t want it go to the Reservoir." . Mr. Fenton added, "There was a very clear path laid out by the permit." Mrs. Brennan said, "Now they are trying to preserve water but at the same time we will be running chemicals to the Reservoir." Mr. Limbacher said, "The sprinkler system is more efficient. I like the concept of spending Mike’s $1,000. We could get plant replacement. Back in 2000 we talked about fertilizer. We need to make sure that the management company is doing what they should be doing." Ms. Harbottle suggested, "We should get a copy of the contract with the landscape company." Mr. Limbacher replied, "Yes, and with sprinkler system. I want to see a contract that will make sure it is done property." Mrs. Brennan asked, "Can we get an annual review from the landscape company?" The response was 'yes'. Mr. Fenton said, "You don’t want this board to become a landscape oversight group. The dream situation would be to get it landscaped in a good way. I am just trying to be respectful to the Board at that time. We have to think about Reservoir." Mr. Limbacher replied, "That. is unrealistically now." Mr. Walter asked about the cost of the sprinkler system. Mr. McNeil replied, "It is $2,000 per unit and there are 32 units ($64,000). Mr. Walter said, "The sprinkler system is clearly a better situation but we should re-emphasize lawn replacement and plant replacement that meets the original approval.". Mr. Frank Sheehan said, "You are dealing with the Association and we try to live by the permit. We tell our persons to use organic fertilizer and we have done that for five years. We have another issue and that is our septic system. We test it quarterly and you get a report. They will not go in an replant four acres. Scott has new grass seed that is drought resistant. We are a responsible association. If you give us approval we will be responsible in the future." Mr. Walter said, "Everyone here is in favor. Just reiterate the earlier conditions." Mr. Fenton said, "We should see the contract right now. It would be good to have it on record." Mr. Limbacher said, "We know the rationale in 2000 and we know it now." Mr. Fenton said he would move to approve the request to amend Condition #21 with conditions about the need for moisture sensors, the use of slow release fertilizers and that the Board receive a copy of the maintenance contract. MOTION: Mr. Fenton Moved to amend Condition #21 of the Flexible Open Space Development Special Permit for the Doctor’s Hill Development to allow the use of underground lawn sprinklers with the following Conditions: 1. The system must have functioning and calibrated moisture sensors. Prior to installation, the contractor shall obtain approval of the DPW Water Division Supervisor for the type, number and location of sensors to be used. 2. The Doctor’s Hill Homeowner’s Association shall continue to insure that no pesticides or herbicides are used on lawns or landscaping, and shall use slow-release fertilizers, as provided in Condition #21 of the Special Permit. 3. The Doctor’s Hill Homeowners’ Association shall provide the Planning Board with a copy of their contract for maintenance of lawns and landscaping, including fertilizer, as provided in Condition #21 of the Special Permit. Mr. Limbacher Seconded the Motion and the vote was a unanimous vote in favor of the Motion. Mr. Walter, Mrs. Chisholm, Mr. Limbacher, Mr. Fenton, and Mr. Vogel voted on the Motion. SITE PLAN WAIVER - SCITUATE PHARMACY 384 GANNETT ROAD There was no one here to represent the applicant. Ms. Harbottle said, "They are going to the Design Review Committee (DRC) next Wednesday. You could approve it subject to getting approval from the DRC.” Ms. Harbottle showed the plan to the Board. The members indicated that they did not want to take any action on the waiver until they heard from the DRC. Ms. Harbottle said that the DRC would review it on June 18th and then the Board could review it at their June 26th meeting. REAPPOINTMENT OF HAL STOKES TO THE DESIGN REVIEW COMMITTEE FORM A PLAN SCITUATE/NORWELL (302 Summer Street, Norwell) Mr. George Davis, the owner, was present. He explained the plan to the Board. He said, "We have a new lot in Norwell and we felt that it would be better for new home owner to continue the line down to make a clean lot.” Mr. Fenton said, “The only buildable parcel is up in front and that is in Norwell by the way. You are really asking to be able to draw a property line for this little tail right here. There is plenty of area.” Mr. Davis agreed. FORM A PLAN 86 CRESCENT AVENUE (LOTS 57 & 58) APPLICANT: ROBERT PROCTOR. OWNERS: ROBERT & FERN PROCTOR, TRUSTEES, CRESCENT AVENUE REALY TRUST There was no one present representing the applicant. The Board had received a request from Doug Aaberg of Aaberg Associates to withdraw the plan. MOTION: Move to allow the Owner/Applicant, Crescent Avenue Realty Trust, Robert & Fern Proctor, Trustees to withdraw without prejudice the Form A Plan for 86 Crescent Avenue (Lots 57 & 58). Plan prepared by Aaberg Associates, Inc. and dated May 7, 2008. [This action was taken in accordance with the letter from Douglas Aaberg of Aaberg Associates, the applicant’s representative, received by Fax on June 9, 2008.] Motion duly Moved by Mr. Limbacher, Seconded by Mrs. Chisholm, and voted unanimously. Mr. Walter, Mrs. Chisholm, Mr. Limbacher and Mr. Vogel voted on the Motion. ACCOUNTING: Motion duly Moved by Mr. Limbacher, Seconded by Mrs. Brennan, and voted unanimously to pay the following: ACCEPTANCE OF MINUTES: Motion duly Moved, Seconded, and voted unanimously to approve the Minutes of March 27 and May 8, 2008 as written. MOTION TO ADJOURN: Motion duly Moved, Seconded, and voted unanimously to adjourn at 11:00 P.M. Respectfully submitted, Merrilyn O'Brien, Secretary
Date Approved
|
| Scituate Town Hall—600 Chief Justice Cushing Highway, Scituate, Massachusetts 02066 - webmaster@town.scituate.ma.us |