Planning Board Minutes

Planning Board Minutes

March 24, 2015

I.  Call to Order

The public meeting was called to order at 6:30 PM by J. Atkinson, Chair, with the following:

Members Present:                                             Planning Staff:

James Atkinson                                                 David Spitz, Town Planner

Peter de Bakker                                                Elaine Banta, Planning Assistant

Larry Brophy

Joan Kozar

Joseph McParland

Allan Peterson

Tom Stello

The meeting began with Public Meeting business rather than the Public Hearing.  It was noted that the legal notice initially cited the hearing location as being at the Harwich Community Center.  The posted meeting agenda subsequently moved the location to Harwich Town Hall.  Mr. J. Atkinson said he wanted to wait a few minutes in case any members of the public went first to the Community Center location.  Mr. Spitz noted that he had consulted with and was following the advice of Town Counsel regarding the change of venue.  A Planning Board member, Ms. Kozar, and staff member, Ms. Banta were at the Community Center at 6:30 directing any interested members of the public to Town Hall.  Signage to that effect also was placed at the Community Center.

III.  Old Business

None

IV.  Briefings

Middle School.  Mr. Brophy reported on a public hearing held last week which was attended by about 30 people.  He said the Middle School Repurpose Committee would be holding a meeting tomorrow night to review comments from the public hearing, to prepare a report to the Board of Selectmen, and then to issue a Request for Proposals.  The January Request for Information yielded 7 responses for housing, mixed use and other uses.  In response to a question from Mr. McParland, Mr. Brophy said a petition had been mentioned at the public hearing and was subsequently delivered to the Town Clerk’s office.  The petition calls for public control of the Middle School property rather than sale to a developer for housing.  It will be on the warrant for May Town Meeting.

East Harwich Subcommittee.  Mr. J. Atkinson said a new zoning draft is now being put into written form.  He and Ms. Kozar separately reviewed an initial draft prepared by Mr. Spitz and recommended some modifications.  After completion of the draft and review by the subcommittee, he said the proposal will be reviewed with the Board of Selectmen to determine its level of support and how strongly the Board would work with Planning to get the proposal approved at Town Meeting.  There is no current timetable for this to take place.

Route 28.  Mr. J. Atkinson said a second work session is being scheduled for Tuesday, March 31, at 4:00 p.m.  Some residents in West Harwich, Harwich Port and South Harwich have already shown an interest. 

V.a.  Minutes

Mr. de Bakker moved and Mr. Brophy seconded a motion to approve the minutes for February 24, 2015.  The motion was approved unanimously.

Mr. McParland moved and Mr. Peterson seconded a motion to approve the minutes for March 12, 2015.  The motion was approved unanimously.

V.b.  Board of Appeals Advisory Opinions

The Planning Board had no comments on current Board of Appeals cases.

The meeting was recessed until 6:45 at which time it was reopened by Chair J. Atkinson.

I.a.  PB 2015-06 Davenport Realty Trust, Fionns Way, Modification of Subdivision

Robin Wilcox, land surveyor, appeared for the applicant.  He said he first worked on this subdivision for John Pina 10 years ago.  Attorney Paul Tardif will represent the upcoming application for duplexes.  Mr. Wilcox presented a map with pavement adjusted to avoid an existing utility pole near Queen Anne Road.  NStar told the applicant it would take at least 8 months to move the pole.  The applicant has designed a small curve to avoid the pole.  In response to staff notes, he noted that the Board of Health required installation of town water during the previous subdivision approval.  The applicant is still agreeing to install town water.

Mr. J. Atkinson asked about the angle of the new road at its intersection with Queen Anne Road.  Mr. Wilcox explained the survey techniques resulting in an intersection angle of close to 90 degrees.  Mr. Spitz reported that the Town Engineer had found the new layout to be acceptable.  Mr. McParland asked if a corrected plan would be filed.  Mr. Wilcox replied that the new road layout is already shown on the submitted “Plan of Land”.

Mr. McParland moved and Mr. de Bakker seconded a motion to adopt the following findings of fact:

• Queen Anne Road is a public way that is maintained and provides safe and adequate access.
• The modification application only involves a change to the paved roadway within the road layout. No other changes have been demonstrated.  All lots meet dimensional requirements for frontage, acreage and shape.
• The existing Agreement and Covenant will remain in full effect.
• An Easement Plan between Lots #2 & #3 exists. The executed documents are shown as Book 24110 Page 157-159.

The motion was approved unanimously (6 to 0).

Mr. McParland moved and Mr. Peterson seconded a motion to approve the modification plan for Davenport Realty Trust as shown on the plan entitled “Plan of Land in Harwich, Massachusetts as prepared for Davenport Realty Trust”, dated December 22, 2014, revised March 18, and March 19, 2015 with the following condition:

1. The Agreement and Covenant recorded as Bk. 24100, Pg. 29-31 at the Barnstable county Registry of Deeds for the original subdivision plan shown as Plan Book 631, Page 99, shall remain in full effect.

The motion was approved unanimously (6 to 0).

I.b.c.d.&e.  PB2015-07,08,09 &10, Fionns Way, Use Special Permits for Two-Family Dwellings

Attorney Paul Tarif appeared for the applicant with Paul Rumul, President of Davenport Companies.  They propose to construct identical duplexes on each of the four lots.  They reviewed the structures with the Town Planner and Building Commissioner and found the design to meet the Harwich definition of a duplex.  He described how the application satisfied the Special Permit review criteria.  To facilitate tracking of permits, he noted the following:

• #2 and #4 Fionn’s Way to be built on Lot 1 (map 69, parcel X6-1)
• #6 and #8 Fionn’s Way to be built on Lot 2 (map 69, parcel X6-2)
• #5 and #7 Fionn’s Way to be built on Lot 3 (map 69, parcel X6-3)
• #1 and #3 Fionn’s Way to be built on Lot 4 (map 69, parcel X6-4).

Mr. J. Atkinson asked Mr. Spitz if the application met the intent of the duplex definition.  Mr. Spitz replied that the application met the wording of the definition.  He could not speak to the original intent.  He said the Planning Board could revisit the duplex definition, if it wished, at a future date.  Mr. J. Atkinson said he questioned whether it meets the intent, but he agrees that it meets the current definition.

Mr. McParland asked about the right-of-way on Lot 2.  Mr. Tardif replied that they had enough room on the parcel so they moved the building 25’ away from the right-of-way to avoid any questions about future front yard setback requirements.  In response to a question from Mr. McParland, Mr. Tardif said there was nothing located within the right-of-way now.

Freeman Allison said he has rights to the easement.  He would like a condition that driveways serving the duplexes could be moved at a later date.  Mr. Tardif said that the easement allows Mr. Allison to construct a road, but it is not an exclusive easement.  Mr. Wilcox said that if Mr. Allison’s road went in, the driveways would be revised to tie in to the new road.  Mr. J. Atkinson said that no action was required by the Planning Board.  Mr. Tardif said that the right-of-way documents specify what the future requirements will be.  Mr. Allison said that if the understanding is that the driveways will tie in to the new road, he does not need anything further now.  He said he is in favor of the project.  Mr. J. Atkinson said this is a title issue and it will not be voted on by the Planning Board.

Mr. McParland moved and Mr. Brophy seconded a motion to approve the following findings of fact:

a. Each lot area contains the minimum requirement of 40,000 SF of upland.

b. Each dwelling unit’s floor area is greater than the 800 SF minimum requirements.

c. A common roof connects the dwelling units.

d. The parcels provide sufficient access for four parking spaces per parcel.

e. The use as developed will not adversely affect the neighborhood.

f. The specific site is an appropriate location for such a use, structure or condition.

g. There will be no nuisance or serious hazard to vehicles or pedestrians.

h. Adequate and appropriate facilities will be provided for the proper operation of the proposed use.  This includes the provision of appropriate sewage treatment facilities which provide for denitrification, when the permit granting authority deems such facilities necessary for protection of drinking water supply wells, ponds or salt water embayments.

The motion was approved unanimously (7 to 0).

Mr. McParland moved and Mr. Brophy seconded a motion to approve the Use Special Permits for two-family dwellings on each of the four (4) lots on Fionns Way for Davenport Realty Trust.

The motion was approved unanimously (7 to 0).

I.f.  PB2015-11 Mike Escher, Main Street Extension, Site Plan Review

Attorney David Arons appeared for the current landowner.  Keith Fernandes of O’Reilly Engineering and Attorney William Crowell appeared for the applicant.  Mr. Fernandes said the applicant, Mike Escher, is seeking to move his operations to this location.    The purchase and sale agreement has deadlines for acquiring the parcel, and one requirement is being able to obtain a building permit.  They are not seeking any waivers.  They have reviewed the staff notes and will make changes to the plans in response to the Town Engineer’s drainage comments.  Mr. McParland said he wants the plan to meet all requirements when it is approved.  Mr. Fernandes and Mr. Crowell both noted the applicant’s time constraints.  Mr. J. Atkinson said language could be placed both in the findings and the conditions of approval.  In response to a question from Mr. J. Atkinson, Mr. Crowell noted the letter regarding taxes that was sent to the Planning Board.  He said the transaction will not close until the back taxes are paid.  Mr. J. Atkinson said this also could be addressed in the findings and conditions of approval.  In response to a question from Mr. Crowell, Mr. J. Atkinson said that 5 positive votes are needed for approval.

Brook Williams cited a section of the Harwich Zoning Bylaw requiring screening to be at least 5’ high and located at least 10’ from the property line.  He said no screening was proposed on the Town of Dennis side, and he noted the existence of a Dennis Water Department easement on that side.  He said screening issues should be carefully considered.  He also noted traffic issues on Main Street Extension.

Jay Coburn from Community Development Partnership said Thankful Chase is a national model for affordable housing.  When his organization developed that site, they made a considerable investment for road and water improvements in the anticipation that 12 additional units could be built on this abutting parcel.  At the time, this parcel was listed as “owner unknown”, and he noted the 2013 Town Meeting action to take this parcel.  He asked why the Town has not aggressively pursued this acquisition.  Regarding the proposed use of the site, he expressed concerns about noise, traffic, dust and dirt.  He also was concerned about late notice and felt not enough time was given to review concerns with the applicant.  He was also concerned that the location of the meeting changed from the original notice.  He urged that the hearing be continued to allow site issues to be addressed and to allow the Town time to give an explanation of why the Town Meeting vote was not implemented.

Attorney David Arons described the Previous Owner Unknown status of the parcel.  He said an owner was subsequently identified, a petition to Land Court was filed, and the parcel was changed from its unknown owner status.  His client has agreed to pay the back taxes of approximately $115,000.  He noted that his client is the legal owner of the parcel; they are ready, willing and able to make the payment to the town; and this will be a great benefit to the town.  He said this is an industrial zone, and they are proposing a use in accordance with the Town Zoning Bylaw.  Mr. Coburn challenged the statement that the Town was coming out ahead considering the investment in infrastructure for Thankful Chase.  He expressed disappointment that Town staff did not pursue a buyer for affordable housing purposed.  Mr. McParland urged the Board of Selectmen to proceed with using Town Counsel to chase after “owner unknown” parcels.

Virginia Esau, Dennis resident, said she supported the Thankful Chase housing project.  She asked why you would put a sliver of an industrial project.  She said that Eagle Pond water quality is threatened.  Main Street Extension is a very dangerous road with no sidewalks and a number of children living on the street.  The addition of 20+ parking spaces will worsen the situation.  There has not been enough notice to study options.  She also noted not shrubbery being proposed on the side of the water department easement.

Rick Hamlin, an abutter in Harwich, said he urged sidewalk construction when Thankful Chase was built.  If it was not required then, it should not be required of this applicant.

Susan Purcell, Dennis resident, said there are no sidewalks and people speed down the street.  She felt Harwich has forgotten this part of town.

Kenneth Menzies, Harwich resident, said the road will not handle the size of equipment to be used by the applicant.

Mr. McParland said the property is properly zoned for the proposed use.  It does not require a variance from the Board of Appeals.  Mr. J. Atkinson said he agrees with Mr. McParland, and his concern is with the adequacy of screening and whether the application meets the current bylaw.

Mr. Crowell said his client should not be put on the defensive.  He is seeking site plan review, not a use variance.  The Town Meeting action and any lost opportunity is not the item before the Planning board.  Regarding adequate notice, the abutters are here tonight and notice was not deficient.

Mr. J. Atkinson asked if the applicant made any attempt to meet with Thankful Chase prior to submitting the application.  Mr. Crowell said no, not until this afternoon.  Mr. McParland asked when the notice was put in the newspaper, and Ms. Banta replied about three weeks ago.  Mr. McParland said he is not comfortable with the plan as it currently stands.

Mr. McParland moved and Mr. de Bakker seconded a motion to continue the public hearing until 6:30 p.m. on April 14, 2015.  Mr. J. Atkinson said he agreed with the motion and that it would give the applicant time to respond to screening and other bylaw issues.  The motion was approved unanimously (7 to 0).

I.g.  PB2015-12  Mark Smith, 1369 Orleans Road, Subdivision with 8 Buildable Lots

The applicant submitted a letter requesting continuation of the application until April 28, 2015 pending the outcome of a Board of Health hearing.

Mr. McParland moved and Mr. A. Peterson seconded a motion to continue the public hearing until 6:30 p.m. on April 28, 2015.  The motion was approved unanimously (6 to 0).

Mr. Brophy and Mr. McParland asked Mr. Spitz to look into possible enforcement action against the sand pit near the Sisson Road/Route 28 intersection.

The meeting was adjourned at 8:40 PM.

Respectfully submitted,

David Spitz

Town Planner

Adopted:          April 14, 2015