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News/Events - Meeting Minutes

MINUTES

JULY 10, 2008

Members Present: Mr. Donald Walter, Chair; Mr. William Limbacher, Vice Chairman; Mr. Mark Fenton, Mr. Robert Vogel, Mrs. Donna Chisholm
Others Present: Ms. Laura Harbottle, Town Planner
Absent: Mrs. Patricia Brennan Finnie, Associate Member

Mr. Walter called the meeting to order at 7:30 PM.

ACCEPTANCE OF AGENDA: Mr. Fenton moved to accept the agenda as written. Mrs. Chisholm seconded the motion and the vote was unanimous.

CONTINUATION OF TWO CONCURRENT PUBLIC HEARINGS

1. Flood Plain & Watershed Protection District Special Permit (Determination of Suitability S470.9) 114 Edward Foster Rd. (Lot 6)
Assessor’s Map 51-2-7 Owner/Applicant: Maryann Doherty

2. Flood Plain & Watershed Protection District Special Permit (Determination of Suitability S470.9) 118 Edward Foster Rd. (Lot 76)
Assessor’s Map #44-2-13 Applicant: Diamond Development Realty Trust

Atty. Michael Bliss, Environmental Scientist Lester Smith, Paul Mirabito, professional surveyor and the applicant Maryann Doherty were present for these hearings.

Mr. Bliss said he would like to look at the definition of flooding and what really is the purpose of Section 470.9 with determination of suitability. They don’t think they are in the district but from prior discussions, he got the sense that the Board didn’t really want to get into that. The building inspector sent the applicants to the Planning Board. They are seeking a determination under Section 470.9 which says that, even though they are in the district, they are not subject to flooding. When you have mapped zones, there is always going to be the possibility of error, especially when they were done back in 1972. He said nobody surveyed them and it was a “rough justice” so there is need to have some sort of a way to say something was in error. He said they have to look closely at the bylaw and they have to go back to 1972 to try to get into the minds of the Town Meeting that enacted this bylaw to try to find what the intent was. There is no formal definition of flooding either in the definitional section of the bylaw or in 470. He said they can’t use the FEMA definition. In 1972, there was no FEMA plan for the town. The first one was in 1977, more than 5 years after Town Meeting passed the bylaw so Town Meeting must have had something else in mind.

Mr. Bliss said it’s important to understand how a flood plain bylaw works. He said you start out with a base flood; some notion of the harm you are trying to prevent and you apply it to the topography of the town. When you apply it, you end up with a flood plain map which shows by contours where the limits of the flood will be. He said it should be clear that if you have a flood plain map, there has to have been a base flood that the designers of the map had in mind when they drew the map. That base flood is the flood where the coastal areas tend to be which can be told because in the coastal areas, the limit of the flood plain is the 10’ contour so obviously they were thinking of a flood that would rise to 10’ and once it rose to 10’, that’s where they put the boundary of the flood plain district. Mr. Bliss said there is also some evidence in the bylaw in Section 480.3. In the last sentence, it says that for all zones indicated in the FEMA maps as unnumbered A zones, the contours established on the maps described in 470.3 shall establish the base flood elevation. He submitted copies of that section to the Board. He said this makes clear that the flood being talked about in the flood plain bylaw was a 10’ flood and that’s the definition of flooding for the purposes of the bylaw. He said it follows from this that parts of the lots which are above 10’ are not subject to flooding. It seems clear to them that they are entitled to a determination of suitability.

Mr. Bliss said to understand the suitability provision, you have to again go back to 1972. Massachusetts had two wetlands statutes that were run by the state agency that were widely viewed as not very effective and towns had no input on it. There were conservation commissions at that time but they had no power, they were just advisory.
Environmental interest was growing and there was a lot of interest in protecting wetlands and natural resources. A popular idea was that towns could, under their zoning power, enact a bylaw like this which is really a wetlands bylaw. By 1976 200 towns in MA enacted these bylaws. One of the features was that you got to map everything. For the town to exercise its wetland power under the zoning act, they had to map everything. As soon as you map something, you start having a need for corrections. All the wetland bylaws have determination of suitability provisions which are designed to correct errors in mapping. Mr. Bliss said there was a case called Turnpike Realty which was decided in 1972 and he gave the Board copies. He said on Page 2, the language in that bylaw which is very similar to the Board’s bylaw says that if land is proved to be not subject to flooding, the Board can give a special permit for the underlying uses. He said the provision was designed as a safety valve for mapping errors. He said right after 1972, the State passed the Wetlands Protection Act and gave Conservation Commissions the power to protect resources on a resource basis rather than on a map basis. Since then the regulations of activities in wetlands and floodplains by Conservation Commissions is a huge business. He wanted to be sure the Board is aware that they have received approvals both from the Scituate Conservation Commission and from DEP. He said that review is thorough and extensive. The Scituate Conservation Commission adopted its own wetlands bylaw which enforces all of the state standards and its own requirements. There are detailed performance standards for what they call Lands Subject to Coastal Storm Flowage.

Mr. Bliss submitted four affidavits to the Board. These included affidavits from Maryann Doherty and Claudia Zimmerman of 125 Edward Foster Road. A petition by a number of people which said they had no objection to the project was also submitted.

Ms. Doherty, the Applicant, said that she has a copy of a letter written by Mary Jenkins but she disputed many of the items in that letter. She said the telephones did work in the Blizzard of 1978. They had no dial tone and could not call out but could get incoming calls. Her husband was hit with a small piece of broken glass. He was in the library within inches of a window that was cracked by a stone. He was hammering plywood at that time over that window when it was hit again by a rock from the beach. He did not lose a lot of blood. He was not weak. And he certainly was not dying. The person who picked up her husband was not a neighbor. It was a dear friend, Andre Farhat who lived and still lives on Harbor Heights Road. Andre had a 4-wheel drive vehicle and was able to drive over the stand and the causeway. There were no large amphibious vehicles. Her husband Gerald was a registered architect and a registered engineer and an experienced seaman. She said that following the storm, he was pleased to know that his design and engineering on their house worked so well. She said they were never in any danger although they did add storm shutters afterwards. She said the land did not flood and had no standing water. She said they had eight sliding glass doors and none of them broke. There was no standing water in the house.

Paul Mirabito said he was a member of the Scituate Planning Board in 1975-1981 and is very familiar with the Flood Plain and Watershed Protection District. He’s been working on this particular site for 19 years. He said that prior to 1995 when the current Building Commissioner came on board, the policy was that they would show the Building Commissioner if they had land that was shown to be in the flood plain district on the 1972 map that was above the contour lines were, he would issue a permit. He spoke at great length to one of the authors of the bylaw who said there were 3 separate flood zones in Scituate. The one in this area was first established and called the base flood elevation at the 10’ contour. He showed on the map that around the base of First Cliff & Second Cliff was shown on the map and they assumed that everything between the two cliffs would be in that flood zone. They recognized however that some areas would be above that 10’ contour. Based on that is why they had the two provisions, Determination of Suitability and the other was Section 470.10.

Mr. Bliss said he’s seen some correspondence comparing this project with Peggotty Beach but that’s like apples and oranges although they are both barrier beaches. He said there’s a dirt road with a cobble berm and a few houses at the north end on the seaward side of the road on Peggotty Beach. The houses are on piles. Edward Foster Road is paved and this area is a stable, vegetated barrier beach. The houses are not on piles because they haven’t had storm damage. There’s a seawall along Edward Foster Road. There is a plan for Peggotty Beach in 1976 which shows almost 20 houses but now there’s only 2 or 3. There was a lot of storm damage. Scituate has a Flood Mitigation Action Plan prepared in May of 2001 which lists high hazards areas but does not include Edward Foster Road. He said shoreline changes have been slight. Mr. Mirabito showed the Board some other photos.

Ms. Harbottle said the purpose of the district is to protect the health and safety of persons against hazards which may result from development in areas subject to flooding. The bylaw was intended to protect people from development in areas subject flooding and to help alleviate problems with emergency vehicles getting to the property, problems with phone calls etc . She said there’s a variety of reasons why that could be reasons why it’s really unsuitable to have development in a flood zone. The bylaw was written a long time ago with a good serviceable map and this property is within the district which is why the special permit is being sought. It’s clear that the determination is supposed to be whether the project is NOT subject to flooding. There are a lot of different opinions but one of the more subjective pieces of information which is not to be confused with this district but is other information that’s available about how likely is a flood to take place. These properties are within two FEMA flood zones, the overwash zone and the velocity zone, which is where there is greater flood damage from the action of water with force behind it. The insurance rates are much higher in the velocity zone than in the other or A zone.

Mr. Walter asked if FEMA allows building in flood zones but Ms. Harbottle said FEMA doesn’t control building; bylaws do. She said that a prior Planning Board back in 1998 did approve new construction in Humarock in the AO Zone. At that time, there were 16 affidavits submitted. Other applications for construction in the floodplain watershed protection district that have been approved have been in an A or AO zone, not in a V zone which is considered to be substantially worse in terms of water damage.

Mrs. Chisholm said this is a difficult decision. The problem is that this property is in a velocity zone. FEMA does verify that as flooding. She said if it’s subject to flooding, the Board cannot approve it. She asked why the current Building Commissioner didn’t issue a permit. Mr. Mirabito said he interprets the bylaw differently and has issues with the bylaw. Mr. Mirabito said that the houses have to be built by the new building code now. Fire and police have no problem. DEP and the Conservation Commission approved the project. Mrs. Chisholm, however, said that what they approved is not what’s before the Planning Board to approve. She doesn’t see how they can approve it. They’re in a velocity zone. Mr. Bliss said he’s very confident that you can’t use the FEMA standards. Mrs. Chisholm said she has no proof that the property hasn’t flooded.

Mr. Fenton asked if they are the only entity that weighs in about flooding. He said Conservation is concerned about wetlands. Ms. Harbottle said Conservation had denied this application when it was first proposed which is why they had to go to DEP. He asked if they rule on flooding but Ms. Harbottle said the issue was the septic system. Mr. Bliss said the interest of the Conservation Commission is exactly the same and he’d be happy to supply the Board with the permits from both the Conservation Commission and DEP.

Mr. Fenton said the Conservation Commission did not approve it but it was on appeal and that it was then approved. Mr. Smith said it should be noted that the project changed to respond to the Conservation Commission and DEP’s comments. Mr. Fenton said that was to change the location of the septic etc. Mr. Fenton is looking for testimony of what physically happens on the site. For the most part, that testimony is not that the water doesn’t wash over the site. Even the affidavits do not say that it doesn’t wash over or that they’ve never seen water on that parcel. If there is public testimony to the contrary, that would be important to the Board. Then it would leave the Board with the question of interpreting water washing over the site as an unsuitable form of flooding. He believes that interpretation is to some degree left to the Board.

Mr. Vogel said he is very torn by the seriousness of this deliberation and the information they are being asked to assess from a perspective of professionalism and from legal precedence. He said he understands them to say that FEMA’s calculations and regulations shouldn’t be applied but he goes back to the fact that the people who wrote the bylaw in 1972 had an intention and that was that you shouldn’t build on land subject to flooding. Period. At that time, their best information and what they could do with their mapping budget was that the 10’ contour dividing the land between land subject to flooding and land not subject to flooding. FEMA with a lot more resources and a lot more recently the flood insurance for the town in 2003 actually sets the still water flood elevation at or about a few feet of this site and they do transects through the coastline. The still water elevation is 13.3’, not 10’ (and that was for a 100 year storm event). The wave crest elevation is a maximum of over 20’. Now we’re saying that we have to disregard this very recent, very scientifically arrived at FEMA information which defines what that agency feels constitutes a flood and return to what he believes Mr. Bliss said is an inaccurate map that was done 35 years ago as their guide for this decision. He’s not persuaded that that is the right way to do that. He also says that from this document’s information that this stretch of Edward Foster Road and Town Way Extension are depicted as exactly the same situation; exactly the same hazard zones with exactly the same storm water and wave crest elevations noted for both of those transects. He doesn’t see how he could vote in favor of putting buildings on this piece of land. Mr. Bliss said they are aware of the FEMA data but he says that the law empowers Boards to do certain things and he doesn’t think it empowers the Board to do free inquiry. This is an old bylaw and should have been swept out a long time ago.

Mr. Mirabito said there is no safety issue. The houses will withstand storms and the Chief has said there is plenty of emergency access. Mr. Smith said he thinks the definition does clearly talk to the elevation. If you look at 480.3, it says the contours shall determine the boundary. Mr. Fenton said that is for the establishment of a flood insurance district, not the flood zone. It leads to another question. He said it goes to the dog-bone shape of First and Second Cliffs and the land between them. He asked if it is conceivable that it is not accidental that the dog bone is not connected. When the map was drawn, somebody might have noticed that there is a lot of overwash in that area. The Zoning Officer said he interprets it to suggest that there is a reason for concern between those two cliffs. He looks for testimony or evidence that there is not a risk in this area, that there is not a challenge to suitability.

Mr. Limbacher said he has more information than he is entitled to and the applicant makes a valid point in his mind as to why they should be looking at recent information. FEMA correctly solved and addressed a lot of the issues that transpired since 1972 but the question in his mind is whether or not 1972 the bench mark. The other piece – if he goes back to the Marinelli case – the issue there was that there was a proliferation of people who sat there and said it was not subject to flooding. He hasn’t seen or heard that here. Some of the things like emergency access seem to be mitigated by one of the public safety officers saying that he has the ability to get access. Also, the Coast Guard who is physically there and they had access to their facility. The environmental impact statement approved by DEP has to look at that piece of property in its entirety and he thinks they would have to address floods. FEMA allows you to build in velocity zones. They are more stringent but they don’t disallow it. Mr. Fenton buys the 10’ line being used. Mr. Limbacher said the legal issues that he has to separate in his mind is whether the property is subject to flooding as opposed to whether he’d like to see two houses built on that property. Left to his own devices, that property would stay vacant forever but he’s being asked “is that area subject to flooding” – based on what he thinks is the 1972 information.

Mr. Walter said what’s really up for discussion is the overwash and anything that happens in the velocity zone. Water can be running over that land. Is that then considered flooding and is it then subject to flooding and they cannot approve it versus water rising from the harbor side up to an elevation of 10-12’. Mr. Fenton is torn because he sees 119 and 124 Edward Foster there. He said they just voted one down in Minot for the very same reason; not because the flood line comes to 10’ but because it’s in the overwash and velocity zone. Mr. Limbacher said there were other issues such as public safety access, vehicle flow, proximity of houses etc.

Mr. Walter asked if they as a Board define what comes in the velocity zone as flooding. If it is flooding, is it then considered an unsuitable place to build. Mr. Fenton said he doesn’t believe they have to reject the 10’ line as the flood line to find it unsuitable. Much more discussion ensued. Mr. Walter said he’d like to find out if anyone in the audience has seen this site flood or not.

Ms. Mary Jenkins of 22 Sunset Road said she thinks some of what she and Maryann were discussing are just semantics; differences of how they saw things. She was 17 at the time. She said she feels not being able to call out as not having phone service. You couldn’t get emergency contacts. The fire department came through and asked people to evacuate because the causeway was a problem. They couldn’t and didn’t believe that they could get across there and they weren’t able to at high tide for three days. They had to have the causeway cleared every time.

She said her family stayed at 98 Crescent Ave. which is two houses away from where Maryann Doherty’s house is on Edward Foster. Maryanne evacuated and the neighbors evacuated. She said there was basically no one else out there except for Gerald Doherty and them. It was her father who found Gerald Doherty on the street. He had tried to board up his window but could not. The water was coming through the house and he had to open the back door to let the water go through the house. He was in a dangerous situation because there was three feet of sand in Edward Foster Rd. and a constant overflow across the road. As he was trying to get out of his house to get to their house, whatever vehicle came out (and they did try to get out on the CB Radio to get the fire department to come out.) They had to wait until the tide receded. She doesn’t know who came out but it was from her family’s house. Her uncle lived further down directly across from the boatyard and was the only other person she knew who had stayed. The water would come up the beach, shoot into the air, fly across through his house and he had a foot of sand in his upstairs bedroom. The whole strip is a velocity zone.

There was severe flooding during that storm. She said she drove down there on July 4th. There was no storm. The entire Edward Foster Road section was flooded. On both sides of that lot, there are access problems. When there’s a storm, they have to schedule getting their child home because the busses don’t drive out Edward Foster Road when it’s high tide. She said the current fire chief is new and probably doesn’t remember that storm. By the end of that storm, there was five feet of sand in Edward Foster Road.

Ms. Jane Thompson of 13 Circuit Avenue said she wasn’t here in 1978 but she was here in 1991 said the water was across the road. One of her neighbors didn’t think it was very deep and tried to drive through it but he lost his car. Mr. John Marks of 126 Edward Foster Road said four houses on the beach were not allowed to hook up to the new sewer system that just went in.

Mr. Hank Stahr of 13 Circuit Ave said certain facts are very clear and that is that there will be another storm. Another fact is global warming and the ocean is rising. The next storm will be more severe. The neighbor to the south of the Doherty property had water flowing all the way through that house. Knowing what these facts show, he doesn’t see how anyone with a conscience could permit anything to be built in that area.

Mr. Pete Konde of 124 Edward Foster Road said in regard to the comment made about observing 124 Edward Foster Road, that was the 1991 storm and they did in fact have damage done to the tune of $20,000 (1991 dollars). They did file a claim with FEMA.

Ms. Carole Fitzgibbon of Seawaters Drive submitted a letter to the Board. She said the overwash has been defined by FEMA as to be a form of coastal flooding. There is no question that overwash is flooding. There is no guarantee even if this property is built higher than the 10’ baseline that isn’t going at some point to be subject to its overwash. Sediment and other things are going to change that location. In the event of a severe storm, sediment can reduce that 10’. She asked why the house has to be built on pilings? Mr. Bliss said they know they are in a FEMA flood zone. With respect to Lot 7, Mrs. Doherty has indicated that she is the owner of 66.4 frontage but she is in a P&H with another person. She is not the owner of the whole lot.

Mr. Herbert Bomengen of 17 Roberts Drive said he’s not sure if flooding is having a house with dirt and water going through it but he does know from discussions he’s had with a fellow at the other end that that house was built for a hurricane and withstood the 1978 storm with waves breaking over the house. In terms of flooding, the street in front of the boatyard and all around floods to different degrees. He showed the Board photos. He said he has other photos showing water all the way up to the town. Mr. Bomengen said the streets get filled with dirt and stones and increases the hazard of access to and from properties.

Mr. John Martin of 104 Edward Foster Road said his driveway is at the low point. Occasionally there is water in the road at high tides. It isn’t a problem unless there’s a storm. He’s lived there for 15 years but wasn’t there in the 1991 or 1978 storms. The house was built in 1951 and as far as he knows, none of the windows ever got broken.

Mr. Pete Konde of 124 Edward Foster Road said he is only here in the summer but even in the summer he has had problems. He’s had wooden walkways ripped up by the water . He said the place does flood.

Atty. Michael Hayes said as far as the Conservation Commission addressing flooding, there are performance standards for building within flood zones. The intent of the bylaw takes in all the concerns that were expressed here tonight and the bylaw specifically gives the Board the authority to help property owners.

Mary Jenkins of 22 Sunset Road said she feels the Board has to think of the people moving into the homes and what would happen to them. The current property has all kinds of landscaping but as soon as that gets washed through it’s going to end up in Edward Foster Road and will have to get plowed out. Ms. Carole Fitzgibbon of 3 Roberts Drive said the burden is on the applicant. The benefit should be to anyone who objects. They have to prove that the property is not subject to flooding. She has not heard anything proving that. The Board can grant it but Edward Foster Road is a narrow little piece of road with the harbor on one side and that ocean on the other. No one can predict that these two lots are not going to flood.

Ms. Carol Marsh of 126 Edward Foster Road said because of it being a barrier beach subject to flooding, any septic systems could be torn out so none of those houses were allowed.

Mr. Hank Stahr of 13 Circuit Street said the operative word in the bylaw is “may” and not “shall”. That means that the Board has the authority to make the decision they want to make. They are not required to make a positive decision.

Mr. Bliss said he wanted to make sure that in the record it was noted that there were four affadavits all saying that these areas are not subject to flooding. Mr. Limbacher said there was a letter from the Petersons that was sent to his house and he wanted to be sure that all the Board had a copy of it.

Mrs. Chisholm said she believes the property does flood and according to the bylaw, they cannot issue a permit if in fact the property floods. Mr. Limbacher asked if she was talking about overwash. Mrs. Chisholm said flooding, waves, velocity, water crashing through the house – to her that’s flooding. Mr. Limbacher goes back to the topography. The flooding that would appear would be at the lower portion of the pink line. Is flooding coming over the sea wall as opposed to flooding from the harbor. Mr. Fenton said they have seen pictures of wave action coming over the seawall inundating the area.

Ms. Harbottle said it’s a very short stubby seawall and is only 2-3’. Mrs. Chisholm said that if there is flooding on the property, they can’t issue a permit. Mr. Walter said it comes back to this overwash, this moving water that’s going someplace, going toward the harbor into Edward Foster Road up to an elevation and it presumably infiltrating in the barrier beach because of the sand and sea grass. Is that moving water considered flooding?

Mr. Walter said the common sense of him says that he would never want to see a house built there but when he looks at what he believes flooding to be, overwash is not flooding. Mrs. Chisholm said when the Mississippi River overwashed the levies, that was flooding. Mr. Walter said when it’s settled down, it’s flooding but unless the levy is not underwater, it is not flooded in his mind. Mr. Fenton said he’s stood in a couple of feet of moving water and it feels like it’s flooding. Mr. Walter said they have regulations in place to build a house in an overwash zone just like everyone else that has to rebuild their house has done. Mr. Fenton said in 15 years, will someone look back and ask what in the heck they were doing approving this. He thinks the common sense argument has legal basis to deny.

Mr. Limbacher said the question he goes back to is “does an overwash constitute a flood”. In his mind, it doesn’t. Mr. Vogel said he still feels the same as he did starting out. They have newer, better information and he doesn’t see why they can’t use it in their deliberations about what’s flooding and what isn’t. It seems to him that FEMA thinks this land is subject to flooding.

Ms. Carole Fitzgibbon said the definition of flood is the overflowing of a great body of water over land etc. as defined by the Army Corp of Engineers. It says that overwash is specifically defined as a form of coastal flooding that can move sediment landward and is a precursor to barrier beaches. An Email was sent from FEMA saying that overwash is flooding.

Mr. Walter asked for a vote. Mr. Limbacher moved to approve the Flood Plain and Watershed Special Permit Determination of Suitability, Section 470.9 for discussion purposes. Mrs. Chisholm seconded. Mr. Vogel said there are sections of the bylaw that were amended. Is there a legal reason that they cannot look beyond 1972 for any kind of statistical or factual data on which to base their decision? Mr. Walter said as he understands it, they have to work within the bylaw. He has come to believe that flooding is when water gets to a point and stays level. As he’s looked at the velocity zone and agrees that there is no doubt that there is a ton of water flowing over that part of the land, the water moves through and doesn’t get to a point of “rest”.

Mrs. Chisholm asked if water flowed through the home and out the other side, would he put in a claim that the house flooded? Mr. Fenton asked if there were any permits for new construction along that stretch of the road? Ms. Harbottle said there have been rehabs of existing structures. Mr. Fenton said this is very challenging and he hates to be unfair when there are houses next door but he said the reason the 1972 bylaw is in place is because the Town collectively said these are precarious places and he doesn’t feel it’s accidental that the map is drawn that way. Mr. Walter said they have allowed reconstruction.

Mr. Limbacher moved to rescind his original motion. Mr. Fenton seconded his motion to rescind. Mr. Fenton moved to deny the Flood Plain and Watershed Protection District Special Permits for 114 and 118 Edward Foster Road based on a determination that both sites do not meet the criteria for a Section 470.9, Determination of Suitability. Mrs. Chisholm seconded. Mr. Fenton, Mrs. Chisholm and Mr. Vogel voted in support of the Motion. Mr. Limbacher and Mr. Walter voted in opposition to the Motion.

Atty. Michael Hayes and Paul Mirabito from Ross Engineering were present for this discussion. Due to the lateness of the start of the meeting, they will continue this discussion to July 24th at 7:30 P.M. Mr. Hayes said they are presenting a 15 lot subdivision on approximately 20 acres. No waivers will be needed. Mr. Mirabito said they will come in from Elm Street with a 574’ long circular road, within the layout of a cul-de-sac although it will not be the same as a standard cul-de-sac. He said they have performed soil and perc tests and all the septic systems will be along the edge of the circle up against the roadway and in the front area of the homes. The storm water basin is not yet designed. They received comments from Paul Scott and the Water Dept.

The Water Department felt that they were not following the original design but they have since spoken to Gene Babin who now understands what they are doing. He felt that this was a cul-de-sac but it really is not. The fire department asked about the height of the berm on the side of the roadway. Mr. Mirabito said Paul Scott suggested that before they start the final design that they sit down with their consulting engineer. They have been to the Conservation Commission. The septics are outside of the 100’ buffer zone. The road is measured to the center and it has a 149’ radius. Lots have 60’ of frontage. Mr. Vogel has concerns with water availability and pressure. They will look into that during the definitive subdivision.

Mr. Vogel said there was some concern previously about water availability on Elm Street and the size of the main and the pressure. Mr. Mirabito said they will discuss that with the engineering department prior to getting into the final design. Mr Hayes said during the preliminary discussions that would not be the case but during the course of the definitive subdivision they would have to show the Board that there’s enough pressure. He said that when Beech Tree Farm was built, the water was looped through to Elm Street. They believe there is sufficient water pressure for 15 homes.

Mr. Walter said the other concern was runoff from this land heading toward tributaries to the Town water supply. Mr. Hayes said during the definitive phase they will do an in-depth drainage study and will show best management practices. The Board of Health has yet to finish their review On Tuesday they are on the agenda with the Board of Selectmen to discuss water supply. He said it’s not an issue because last year the Town increased the water withdrawal permit by 150,000 gallons/day and the current availability of water is for approximately 800 new homes so 15 homes will not affect that.

Mrs. Chisholm said she’d prefer to see 12 homes instead of 15 only because it seems so congested. They’ll need a huge buffer zone for people on Elm Street and she doesn’t think there is much of a buffer shown on the plan. Mr. Walter said Lots 11 and 13 are going to be pushed back on the lots behind Lot 12. He’d like to see them moved closer to the road to better use the land. Also, Lots 4 & 5 are close behind Lots 6 & 3. He’d like to see them moved also. There will be individual septic systems. The wetland line is delineated. Mr. Mirabito said basins have to be on their own parcel if they are over 2500 square feet. The driveway to Lot 9 will also serve as access to the basin.

Mr. Limbacher suggested an alternative to the big basin. There is a high water table in that area. He asked what kind of fill is going to be needed and what would be the changes to the elevation of the systems.. Mr. Mirabito said he hasn’t done the grading calculations because the septic systems would have to be designed first. The storm water basin has to be at least 2’ above the high ground water. He said there may be a fair amount of fill required. The septic systems will have to be mounded. If they have the ability to underdrain it, it may be better so they can reduce the fill. Mr. Limbacher is concerned about fill especially with mounded systems near the basin.

Mr. Hayes said the P&S is looking for 15 lots. They could withdraw if there are less than 12. Mr. Limbacher said a lot of those will be undesirable. He’s concerned about drainage going to the wetlands. Mr. Walter said one obvious location for the drainage is within the circle. Ms. Harbottle said there are a lot of lots. When it was pointed out that they were doing a radius of 149’, it’s interesting that it shows that whatever is in the bylaw is what the town is going to get in terms of the number of lots. Maybe at some point this provision should be tweaked. Ms. Harbottle said there is a memo from the Water Resource Committee. Mr. Hayes said their concerns will be addressed in engineering and the Best Management Practices in the Definitive. They will have stormceptors to treat drainage.

Mr. Fenton said this is a great opportunity for low impact drainage design. He said there could be some interesting landscaping, preserving mature trees, and a lot of rain gardens in the center of the circle with trees along the perimeter. He asked what the width of the roadway is – it is 22’. Mr. Fenton asked if they had considered a one-way circle. Mr. Mirabito said they still need the radius for the fire trucks. The new equipment requires a larger turning radius. Mr. Fenton asked them to seriously consider a one way. He said you could do that by shaping it. He’d like them to think creatively. He said this proposal shows a 250’ drive to get to Lot 9. There will be a lot of asphalt and anything they can do to reduce it would be good.

To summarize he said roadway width, one way, driveway length, landscaping – all are concerns. He would like to see Low Impact Development methods and a multi-mode transportation study. He’d like them to look at what kind of traffic is going to be generated out of Elm. All of the kids are going to be in the no bus zone of the Jenkins School. There are no sidewalks down Elm Street which is problematic and there will be a lot of kids in 15 new homes. Rather than a traffic study, he’d like to ask the developer to contribute money to having a sidewalk put in on Elm Street just to get to First Parish Road.

Mr. Peter Paliulis of 10 Pennfield Road said he’s concerned about the number of houses. He said three houses in one corner, Lots 12, 11 and 13 seem like they are going to get all pushed into that one place. Mr. Walter asked if there is any possibility of using common drives and then branching off so there wouldn’t be so many curb cuts and so many ribbons of asphalt criss crossing that land.

Mr. Hayes said one alternative that meets all subdivision requirements would be 11 duplex lots but the applicant preferred the single family homes. There is 250’ of granite curbing required. The applicants are open to discussion but the intent is to submit a subdivision that meets all the regulations.

Mr. Joe Wood of 45 Oakhurst Road asked if the plan is to put the septic systems around the edge of the circle. Mr. Mirabito said that it was. Mr. Wood asked if the drainage from the circle into that common basin is storm drainage or drainage from the septic systems. He said there’s a high water table and he is concerned with septic runoff. Mr. Mirabito said the septics will be designed with Title 5 and DPW, Board of Health and DEP all have strict requirements that have to be met. He said there is all kinds of controls and review. Mr. Wood said one of the perc tests failed and had to be done over again. Mr. Mirabito said some of the percs failed because of the high ground water and poor soils. They were able to get several perc tests on each lot. They’ll go back in August and do some more.

Mr. Norm Duffy of 73 Elm Street asked if there are sidewalks proposed down that new road. Mr. Fenton would love to see it extended. Mr. Duffy said he presumes the water flows down hill towards the railroad tracks and said that if they tap into that main up where the proposed road goes in, he thinks it will affect the water pressure. He said it’s not that great there now and he hasn’t noticed any improvement since it’s been looped through. He asked if that will be studied. Mr. Walter said this is just a preliminary and they will have to do that as part of a full submission.

Mr. Fenton moved to continue the preliminary plan of Tilden Estates, 77 Elm Street, till July 24th at 7:30 PM. Mr. Limbacher seconded and the vote was unanimous.

Mr. Wayne Molinari of 325 Country Way explained what he is intending to do. He’s going to come out with the roof about 32”. It will be flared and boxed out with a red cedar roof. They went to a Design Review Committee last week. They discussed the lights and sign. Comments were received from the Design Review Committee. Ms. Harbottle and Mr. Fenton think the sign is very important. Mr. Robert Vogel moved to approve the site plan waiver with the condition that Mr. Mullen come back with the sign design for approval by the Board and execute of the Design Review Comments dated July 2, 2008. Mr. Fenton seconded. The vote was unanimous.

Mr. Limbacher moved to adjourn the meeting at 10:50 P.M. Mrs. Chisholm seconded and the vote was unanimous.

Respectfully submitted,

Kay Ramsey, Secretary for the Evening.

Robert Vogel, Clerk

Date Approved