MINUTES

May 14, 2009

Members Present: Mr. Donald Walter, Mrs. Donna Chisholm, Mr. William Limbacher, Mr. Robert Vogel, Dr. Nico Afanasenko

Members Absent: Mrs. Patricia Brennan Finnie

Others Present: Ms. Laura Harbottle, Town Planner
See Sign-in List for names of others present at this meeting.

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

ACCEPTANCE OF AGENDA: Mr. Limbacher moved to accept the agenda. Mrs. Chisholm seconded the Motion and the vote was unanimous.

Old Business, New Business, Correspondence, Administrative Items, Updates

Reorganization of the Planning Board:

Mr. Walter welcomed Dr. Nico Afanasenko to the Board. Dr. Afanasenko was elected by the townspeople at the May 9th town election to replace Mr. Mark Fenton.

MOTION: Mr. Limbacher moved to nominate Mrs. Donna Chisholm as Chairman of the Board. Mr. Vogel seconded the motion and the vote was unanimous.

MOTION: Mr. Walter moved to nominate Mr. Limbacher as Vice Chairman. Mr. Vogel seconded the motion and the vote was unanimous.

MOTION: Mr. Limbacher moved to nominate Dr. Afanasenko as Clerk. Mr. Walter seconded the motion and the vote was unanimous.

Sign signature forms for Plymouth County Registry of Deeds and Land Court
The Board signed the signature forms to be sent to the Registries for their records.

Accounting
MOTION: Dr. Afanasenko moved to pay the following bills. Mr. Walter seconded the motion and the vote was unanimous.

1. Registry of Deeds - $ 77.00
2. MAPD 2009 Annual Conference - $85.00

Appoint Planning Board representatives to Zoning By-Law Review Committee
Mrs. Chisholm asked the Board if there were any volunteers. Mr. Walter & Mr. Limbacher stated they would be interested. Mr. Limbacher said he would send a letter to the Board of Selectmen with the names of the Planning Board members for the committee. He also asked Laura to give them the four applications received in Planning for the members at large and remind them to follow up on secretarial support. The Board discussed a possible start time the first week of June. Mrs. Chisholm will follow up with the ZBA Chairman.
MOTION: Dr. Afanasenko moved to nominate Mr. Walter and Mr. Limbacher as the Planning Board representatives to the Zoning By-Law Review Committee. Mr. Vogel seconded the motion and the vote was unanimous.

Town Planner Report
Ms. Harbottle stated that there is interest in people buying units at the Riverway development.

A residential abutter to TK O’Malley’s, Ed Leary, who has come to Town Hall and contacted Mr. Limbacher and Mr. Walter to ask why was a dock going in at TK’s. According to Neil Duggan, because there are only 5 slips, it did not require a Special Permit. Mr. Limbacher stated he is aware of the fact that they filed for Chapter 91 and got their approvals.

Ms. Harbottle said she has had communication regarding a restaurant going into the Welch Co. building. Everyone in Town Hall agrees that this will require a Site Plan Special Permit before opening. Mr. Walter suggested the applicants do a parking study before coming before the Board. Mr. Limbacher stated he would have to understand the agreement of the current parking/condo situation.

The Board discussed the Harbor Walk as well as improving the look of Cole Parkway.

Public Hearing: Stormwater Regulations (See draft dated 4/7/2009 on file with Town Clerk and Planning Board)
Samantha Woods, Director NSRWA, addressed the Board. The NSRWA is concerned with the water quality and health of our rivers. Much of the town of Scituate lies within the watershed to our rivers. Currently our rivers do not meet the clean water act standards. Scituate received technical help from the MAPC with a model by-law around stormwater regulations. NSRWA was a strong proponent at Town Meeting to get the by-law approved.

Ms. Harbottle stated that the regulations are being considered to implement a Stormwater By-Law that was adopted by Town Meeting in 2008. Referring to the Stormwater Regulations draft dated 4/7/09, Ms. Harbottle stated the most basic parameter is that there is a 15,000sf threshold that the regulations will deal with unless you have a very deep slope in which case there would be a different threshold.

Ms. Harbottle read through the 4/7/09 draft with the following comments:
• One of the more important definitions is alteration because it is 15,000sf or more of alteration that will be regulated.
• Other important definitions refer to some of the specialized types of drainage
• These regulations will not affect the Wetlands Protection Act. Nothing in the Conservation jurisdiction will be affected by these regulations
• There will be some land development that will be exempt such as minor landscaping, repairing a septic system, anything that Conservation is already looking at etc.
• If the clearing is below 15,000sf there would not be a required permit however, the Conservation Agent or Town Planner would review the plans and make some recommendations. It would be good to get the threshold lower but the Building Dept. did not feel it would be fair to the voters who thought the 15,000sf would be the threshold. Being over the 15,000sf threshold would currently require the applicant to come before the Planning Board for a hearing and present a lot of information to get a permit. Ms. Harbottle feels this may be hard in certain cases.
• There is language about a review by a consulting engineer for a project over the 15,000sf. Ms. Harbottle doesn’t think it would have to be for every single project. The fees to pay for this will have to be worked out with our accounting department.
• Regarding performance standards, the town uses the State’s Stormwater Management Standards, which are pretty general. The town also uses standards that apply to Scituate such as LID techniques etc.
• The site design criteria works with regulations already in place. The Conservation Commission is already prohibiting alteration within 50ft of a wetland for instance.
• Construction monitoring is something the town has had difficulty with in subdivisions. It addresses how the applicants will pay for inspections. There is a provision for maintenance. It will allow us to have tools to correct a serious drainage problem.

Ms. Harbottle showed Ms. Woods and the Planning Board a recent application that she became involved with on Booth Hill Road. She explained the project would involve around 20,000sf of clearing. After meeting with the owners and engineer, there was an agreement to change the layout of the driveway resulting in less clearing.

Mr. Vogel asked Ms. Harbottle how the process would bring people in to have their project reviewed. Ms. Harbottle responded that Planning is now in the computer system for the Building Dept. as a sign off on residential building permits. The commercial permits are still being worked out. Currently Mr. Kalishes walks the application over to us. The Board had further discussion on the threshold of 15,000sf and when a permit process would be necessary.

Ms. Woods read paragraph 4A. She feels some of the language is too squishy. The threshold being described in the draft regulations talks about greater than or less than 15,000sf and does not address the 25% impervious surface. She stated she doesn’t like the use of the word “may”. It is important that the smaller projects get reviewed without an extraordinary expense. She would like the Board to remember that the stormwater issue is cumulative. A lot of little projects can add up.

The Board continued with discussion on changing some of the wording in the draft. They also discussed ideas of how and when an applicant would be notified that a Stormwater Permit may be necessary as part of their project. Most Board members felt information about the permit process should accompany the building permit application.

MOTION: Mr. Limbacher moved to continue the Stormwater Public Hearing to June 11, 2009 at 8:00. Dr. Afanasenko seconded the motion and the vote was unanimous.

Review Request for Release of Surety – Arborway Estates (19 lots, approved 8/2/1995) in the amount of $7,752.66 plus any additional accrued interest, in Town of Scituate account with Citizens Bank
Attorney Robert Galvin representing the Homeowner’s Association addressed the Board. Back in April, my father appeared on my behalf explaining the basis for the resident’s claim that this money should be seized by the Planning Board and either paid over to them or to the contractors completing the work relating to the septic systems. Since this meeting, he was provided with a copy of a letter written by Mr. Rowe. He replied to the Planning Board with a letter dated today, 5/14/09 regarding Mr. Rowe’s letter as well as additional information relating to this issue. He asked the Board if he could speak to the most notable points from his letter. Attached to the letter are estimates to repair the system. Ms. Harbottle told Attorney Galvin the Board had not received copies of the letter and attachments (the recording secretary left to make copies).

Attorney Galvin stated Mr. Rowe has taken the position the septic system was not a shared system. If you look at the information he submitted to the board, the subdivision was approved with two subdivision roadways with drainage infrastructure including retention and detention basins. However, there is a third component which is a common area adjoining leaching fields. Mr. Galvin showed the Board the plan and explained how the systems pump to the common leaching area. The homeowner’s systems failed because of a combination of factors. They failed because the septic tanks were not properly used in this type of application. They failed because the leaching field was not constructed properly and because the design was inherently flawed. The Board of Health in Scituate did approve this design but it was relying on the engineering firm of Neil J. Murphy & Associates and Weston & Sampson. Both firms stamped the design. Murphy & Associates were responsible for laying out the common leaching fields. Weston & Sampson was responsible for developing the proposed septic tank with the pump inside it. On April 28th Mr. Rowe made a statement that Weston & Sampson has been found liable in connection with this issue. That is not true. There has been no adjudication of any liability at this point. The matter is currently in litigation. Weston & Sampson does have some responsibility however. They offered Mr. Rowe a contract to supervise the installation of the common leaching area and the installation of the individual units. In order to save money, Mr. Rowe elected to do this on his own with his own people. The septic system soil absorption system was part of the common development, which is evident from the covenant they gave to the Planning Board. Damage estimates for my clients are in excess of $300,000.00 out of pocket expenses. Mr. Rowe has professed to be on the verge of bankruptcy. He has not resolved his case with my clients. The only asset that appears to be left in the name of Arborway Estates Realty Trust is the $7,800.00 that the Planning Board is holding. Attorney Galvin stated they do not take issue that he has completed the roadway and drainage in accordance with how it was designed. He never completed and never completed properly the installation of the septic systems. The homeowner’s are asking the Planning Board to seize the surety and turn it over to the Homeowner’s Association or use it to pay the contractor.

Mr. Arthur Rowe, Arborway Estates Realty Trust, addressed the Board. He said that he started the development with the idea of a common septic system before the new Title V regulations in 1985, which did not adapt well to shared systems for residential projects. He did have Weston & Sampson design a shared septic system. This shared common system did not turn out to be feasible. At that point, he went with 19 individual systems on easements. Each homeowner had their own easement deeded to them. He submitted to the Board a copy of the Declaration of Covenant, Restrictions and Easements. He pointed out article 3 explains how the systems work. The individual homeowners had to maintain their own system. The only common component in this development is the 11 acres deeded to the homeowners as open space. There were 19 permits pulled for each lot in the subdivision and each had to do their own pumping. There were restrictions such as no garbage disposals, pumping out every year according to the Board of Health regulations etc. Title V regulations define a shared system as servicing more than one home.

Mr. Rowe stated he is not an engineer. He hired an engineer to design the system. The system they came up with was a one-tank system as opposed to the two-tank system that is customarily installed. He sold all but 2 lots with the septic field only. He had an approval for this pump system. People could have used a different pump system or could have used a two-tank system.

Mr. Rowe said that he replaced one system early when it first failed. They opened the field and found diesel fuel clogging the system. The pump system is no longer being sold. There has been an ongoing lawsuit since 1991 or 1992. He is a defendant on this case as well as Weston & Sampson and Neil Murphy. They have negotiated a settlement for over $220,000.00 to remedy the situation. A lot of these systems lasted for ten years.

Mr. Rowe concluded by stating that he has submitted as-built plans. He has outstanding bills from his engineer. He was hoping to use the balance of surety for this. It is quite clear that this is not a common septic system. He questions whether surety should be used for this purpose.

Ms. Harbottle said this is an unusual situation. The covenant talks about municipal services, which could include some types of infrastructure that are not typical. She stated that if the Board wants to be on the safe side she would recommend checking with Town Counsel. Mrs. Chisholm asked if there is more work that needs to be done. Ms. Harbottle replied that she knows there are issues with a detention basin and she asked Conservation to respond to this. Mr. Walter asked if Conservation had surety for the detention basin. Mr. Rowe answered yes and it has been released.

Mr. David Sincoski, 29 Fox Vine Lane said that it is a unique one-tank system. After extensive research, nowhere in North America is there a one-tank system used in a residential application as there is in Fox Vine Lane, Scituate. The homeowner’s have never asked for any money up to this point from Mr. Rowe. What was wanted was for the contractor to make this system whole. The homeowner’s have not been able to use their backyards for six years because the septic was overflowing.

Mr. Keith Haselman, 22 Fox Vine Lane stated he does sit on the common field. He purchased his system without a pump. The system and the fields were designed long before the houses were all in. They were connected up later. He doesn’t think it was only the pump. Mr. Haselman dug up the pipe and measured it. It was suppose to be 75ft. and it was only 50ft. So, there was a single 50ft. pipe for a family of six. The access is one common bundled line with all these lines coming up and splitting in the field. This was designed before the whole place was done. This whole field was done in a unique set pattern as a uniform system in the field. The houses were sold and Mr. Rowe parceled up and said you’ll get this field; you’ll get that one etc. Mr. Haselman stated he moved in and got the house and everything from Mr. Rowe and it was a common field. At that point, that’s when the systems had to be hooked up.

Mr. Patrick Carolan, 34 Fox Vine Lane, said he bought the house from Mr. Rowe. This system should never have been approved. The personal hardship of having to be awoken at 2:00AM because an alarm goes off is an inconvenience that has happened for seven years. Matters have been taken into our own hands so the situation is being resolved. He thinks the Board made the right decision at the last meeting.

Joe McCluskey, 100 Pratt Road, stated he is in the unique situation where he had the ability to exit from the common system. Mr. Rowe claimed that during development he could not get a lot to perc so there could not be individual systems on the property. He installed a system at his expense on his property to get away from the common system. His system failed 4yrs 3mos after passing papers. Mr. Rowe states he had nothing to do with the installation yet he watched him install the pump in front of his house. He will probably get one third of the out of pocket expense back from litigation.

Mr. Walter asked when the systems began to fail. Attorney Galvin replied as soon as the homes began pumping into the septic field there was a failure. Mr. Carolan stated he took possession of his house only to drive up the driveway and there was a big hole in his front yard where his pump was missing. Mr. Rowe had removed the pump because someone else’s had failed and he needed it.

Mr. Walter asked when the houses were completed. Attorney Galvin responded the houses were completed several years ago. The last revised subdivision plan was dated April 5, 1999. Ten years later there are still problems with septic systems and other issues.

Mr. Rowe stated that these systems were designed under the old regulations. All the systems were approved and witnessed by the Board of Health. He is not sure how many systems have failed. Mr. Galvin may know. Attorney Galvin responded 17 of 19.

Mr. Limbacher said this is more convoluted than what the Board was led to believe the first time. Attorney Galvin said that this $7,800.00 is the only asset attributable to Arborway. However, it really isn’t an asset because they haven’t done the work required by the town. If it is returned and becomes an asset to Arborway it could be disposed of through the court. Dr. Afanasenko asked if the Board knows what the liability to the town is. Mr. Limbacher responded no.

Mr. Rowe said he just gave Laura a letter from the DPW stating the work that is left.

Mr. Limbacher said that going to Town Council is fine but it comes with a cost. He would suggest the Board rescind the prior vote and find out how much the DPW needs to finish. At that time, the balance could be put out there for the homeowners to get.

Mr. Vogel stated that if he had an engineer design something and it was installed the way it was designed, and it turns out to not work his claim would be against the engineer. Is it the homeowner’s association that has brought the lawsuit? Attorney Galvin responded that the homeowner’s association is not a legal entity. It is the individual homeowners that have brought suit. Mr. Rowe stated that Weston & Sampson who is a defendant has come up with $220,000.00 and other defendants have come up with money as well. Mr. Vogel asked what has happened to that money. Attorney Galvin replied that there has not been a settlement agreed upon.

The Board continued to discuss whether the system is a common system and if it was part of the infrastructure. There was also discussion regarding outstanding work that still needs to be done. The Board agreed that they should check with Town Counsel to see if after the town is satisfied, any remaining surety could be turned over to the Homeowner’s Association.

Planning Board Liaison List

The Board discussed and volunteered for positions as liaisons to the different town committees.

Motion to Adjourn: Motion duly Moved by Mr. Vogel. Seconded by Mr. Limbacher and voted unanimously to adjourn at 10:40 P.M.

Respectfully submitted,

Maureen Galvin
Secretary
Planning Board

Dr. Nico Afanasenko, Clerk

Date Approved: