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HomeMy Public PortalAboutPlanning Board -- 2006-08-23 Minutes~- bate approved: Vote: TOWN OF BREWSTER PLANNING BOARD August 23, 2006 -Meeting Minutes Town Hall Office Chairman William Henchy called the meeting to order at 7:10 p.m. Members present were; William Henchy, John P. McMullen, Elizabeth G. Taylor, Jane Remy, Robert C. Bugle, Members excused were: Marjorie Pierce and Amber Tubman The Chair read the following notice: CONTINUANCE -LEGAL HEARING -SPECIAL PERMIT #SP2006-1 CORRIDOR OVERLAY PROTECTION DISTRICT BYLAW -Girl Scouts of Patriots Trail -Located off Crowell's Bog Road, on Assessors' Map 49, Lots 11 & 41-55. Change of use of part of storage space in basement of the dining hall to indoor program space such as arts and craft or lessons and such. Barbara LaBonte present for the Girl Scouts -Victor requested we hear this case first as it a continuance of a previous meeting where there wasn't a quorum. Chair - It is my recollection from our previous discussion at that hearing that planning board didn't have a quorum. The Girl Scouts situation is very simple. You are changing nothing except the use of the room downstairs from storage to an arts and crafts area. Barbara - It was used for storage and we would like to change the use to craft programs and lessons. We have met all the requirements needed. Chair - It does not impact traffic? Barbara -There will be no increase in traffic Chair -There are no changes in transportation, no changes in the number of cars coming and going? No changes in the access to the premises? No changes to parking? The landscaping outside is not being altered or adjusted? Barbara -correct Chair -Under section 51, special permits, the proposed use is consistent with the intent of the town of Brewster comprehensive plan. The location and type, character and size of the building will stay the same. The site is usable for . the proposed usage, adequate access will be provided for the purpose of fire protection, as it is already. The street serving the area is adequate and the proposed use does comply with all provisions of the zoning bylaw. . May we have a motion to approve this application? Bob - so moved, John second. Board voted unanimously to approve. The Chair read the following notice: CONTINUANCE -LEGAL HEARING -SPECIAL PERMIT #SP2006-13 CORRIDOR OVERLAY PROTECTION DISTRICT BYLAW -McGinnis applicant, Hopkins owner -Located at 2750 Main Street, on Assessors' Map 1~; Lot 61. To consider request to withdraw the application. McMullen - recused himself. Attorney Landreth - It is self explanatory in the letter, on behalf of the applicant, to withdraw the request for modification of the special permit to convert 200 square feet retail use to serve wine and beer. In my letter dated, August 7, I told that to the board. Chair - I gather it is your intention to go back to the terms and conditions originally granted? Planning Board Meeting 1 of 14 August 9, 2006 Landreth -Yes, of course. No modifications have been granted. We would come back to the board for future modification if we wanted to sell wine and beer. At this point in time, they will not sell wine and beer. They will establish a track record and see what the implications are. In the future, when we have actual traffic data, then it is likely we will seek this modification again. I'm told that based upon the fact that there been a request from the proprietors, the wine and beer would support this. But it's not the core use. Under the circumstances, and mindful of the boards position of regardability to press ahead, at this point would be premature. That is the reason for the withdrawal. Chair -anyone on the board have any comments? Robert - I will not make any comments at this time. Jane - No comments Elizabeth -Are we going to see the rest of the permit conditions brought up to completion? Has the dumpster been enclosed yet? Victor - I'm not sure if you have my letter before you. There are conditions that are necessary to review before approval. Chair - Is there a stockade fence around the dumpster. Victor -the posts are in but the fence is not in yet. Chair -The original permit may no provisions for food consumption on the premises. Several members of the board, myself included, and a couple of people from the administrative office have noticed and viewed people eating on the porch. I'd like to have a motion form the board, to first of all to allow the withdrawal of the application and secondly to reaffirm the conditions of the original permit which does not have any provisions for consumption of food on the premises. Anybody have any comment? No comments.... All those in favor of that motion - 4 aye's, You're are withdrawn. Landreth -Point of information, that motion, I take it, was the first motion, which is to withdraw. The chairman in effect, asked for two motions. One was a motion to allow the applicant to withdraw the application. The second motion you asked for was a motion to reaffirm the condition of the original permit. I only heard one motion passed. At least that is my understanding. Chair - I thought it was a double motion Landreth -Alright, let me make a point then. I vigorously object to any discussion with regard to anything other than the modification of the special permit. I think I set forth the basis for that in the letter. It is not appropriate for this board at this point in time and for the record, I think you understand based upon my letter that I don't agree with the board's decision. I won't take up your time arguing Chair - I will include the second motion because there has been so much time and discussion since early spring when you first brought up the cooler case with the package store component. At that time, we were very much surprised by the applicant position. That it was the applicant's posture all along because that was a surprise to everybody on the board and it also contradicts what you said in your letter of March, that you were representing the retail operation. In any event, I think we should just let the thing lie. Landreth -With all due respect, the board classified it as a restaurant. I know of no place in the world where a restaurant isn't allowed consumption of food on their premises. That is the very definition of a restaurant. I think we will probably take this up with a different content. The one thing I am curious about is, it is my understanding that there is no cross relationship between the fact that we asked for a liquor license and the fact that we contend that there is accommodation seating. In other words, the two aren't mixed in the boards mind. That's all I wanted to share with you. That is our understanding. Chair - It was mixed in the boards mind because they contradicting their representations made during the process of the original grant. Landreth - I think we have a difference of opinion. Planning Board Meeting 2 of 14 August 9, 2006 Bob to the Chair - May I point out that the John O'Reilly report/presentation all of this included the Board of Health. It specifically states that there was to be no seating on the premises and that is in several places. I would disagree with the attorney perception. Landreth -The decision itself states no indoor seating, outdoor seating shall be permitted. So if you are talking about outdoor seating and you're talking about the fact that there would be a spoke from the Cape Cod rail trail to this premises and there would be approximately 900 sq. feet of covered space. What does our proceeding mean? Other than the special permit, which is after all the doctrine which we are trying to avert. Condition 14 says outdoor seating shall be permitted. It says no indoor seating has been sought, therefore none shall be permitted. Again, I understand the boards point of view, all I'm asking you to do is read the decision and reflect upon it. All it amounts to in my mind and I think that the board should understand it is not the core business. It's an accommodation that has been very well received by the patrons. To the extent and notion, this will drive the traffic to a point where it wasn't considered by the board in it's earlier illuminations on the subject. Chair - We voted and moved on the motion. Elizabeth - do you want a motion on the second half of that. Chair -yes, go ahead and do that. Elizabeth motion -Bob - It's a second. Chair - We will vote on that one. Jane -Would you repeat the motion please? Chair -The second motion was to reaffirm our original decision which did not include any provisions for the consumption of food on the premises. I have a letter from Town Counsel discussing thi. Chair reading from letter -your memory of the seating issue is very consistent with the applicant's attorney's memory of the issue. In a letter you wrote to the board in March, 2006... Duane Landreth wrote. The board will recall that a grapple with the precise use of the property which consists of the sale of cooked food for consumption on the premises, grocery items, fresh vegetables for residents of managers use. The commercial use part took of both restaurant and retail characteristics, even though no meal will be served on the premises. A true and accurate copy of Attorney Landreth's letter is attached hereto. Given that, let's take our vote again. Mr. Bugle -Aye, Mrs. Remy -aye, Elizabeth -aye, Chair votes aye. The Chair read the following notice: LEGAL HEARING -PRELIMINARY SUBDIVISION PLAN #PRE2006-16 -Robert M. Perry, Cape Cod Engineering Inc. -Located off A.P. Newcomb Road on Assessors' Map 36, Parcels 1 & 5. Preliminary Plan of property for approval as a subdivision. Chair -reads above Jane Remy recuses herself Do not have a quorum, but not needed because it is a preliminary plan Bob Perry from Cape Cod Engineering for Jay Merchant - We are here in collaboration with Paul Sweetser, surveyor. We offering our services, assisting Jay Merchant who is the owner of the parcel 1, approx 4 acres and Paul and John Curtis, owners of approximately 8.1 acre parcel, fronting on AP Newcomb Road. To combine those two land areas for purposes of residential subdivision. We submitted to you, included with a letter that basically describes the proposal included suggested road names. In all discussions I've had with the planning department indicate that the board would also be interested in a considering concepts of cluster development application. We first want to introduce this to you and tell you the back parcel has some history. A number of efforts have been made to divide it, with an intersection quite close to A.P. Newcomb Road. Planning Board Meeting 3 of 14 August 9, 2006 Chair: I do recall those. Bob Perry -Yes, quite a few years ago. This collaborative effort has solved a number of issues and we located the roadway entrance on A.P. Newcomb Road such that it is basically prioritized regarding the distance from Dillingham to a minor street, closest to Dillingham while exceeding the minimum and it is quite far away from the Satucket/A.P.Newcomb intersection. The land itself, both parcels are, comprised of sandy gravel deposits. There are no wetland on the property. There is a wetland that borders and runs the boundary of the southern portion of parcel 1. Conservation buffer zones affect that land. There is a NSTAR electric transmission the runs through portion of both parcels. The effort has been made to map out a grid subdivision that acknowledges the location and impact of the easement has as well as an effort to provide safe and adequate access for residential purposes. We believe that the grid is the better option in this case for a number of reasons. The property is quite heavily saddled with the NSTAR easement, having to deduct that easement area from the open space that would be within the cluster, creates the need for some very small lots. They are on the order of a'/ acre. In today's world, those are considered small lots. The prospect of enlarging those to get to the 25 to 30 thousand square foot range, which might more marketable, requires a variance from the Zoning Board of Appeals, to avoid having to account for a deduction of the 4.5 acres within the NSTAR easement. We are not clear whether the planning board has the special authority over this to waive the zoning regulations. Please add to this, it is in my experience which is line with many other experiences in the world, there are a lot of grid subdivisions that do not result wholesale clearing or affecting the property. This land has a number of nice trees on it that in the forested area. It is quite forested. It's just not in the realm of possibility the land would be overburdened if it were approved for the grid. My general feeling is that there is quite a bit of land that runs west of here. I don't know what will happen that land someday. It may wind up as an open space of some kind. There are a number of people in town that would enjoy the use of horses and equestrian pursuits and it just doesn't work for that type of ultimate use with a cluster. This property is also in a sense has the benefit of the power lines that would provide a conduit for access, in an informal way. It's already saddled with 4.5 acres clearly an area that no one is going to develop. To restrict it further it doesn't have the environmental sensitivity that some lands have. I don't want to discount entirely this beautiful land, it's wooded and has all the amenities and pleasurable components of land in Brewster, but we have looked at this long and hard. We have felt given some of the restrictions that would exist on the south, which is essentially wetlands and the setbacks are required from wetlands. Most people purchasing this land will, of their own volition, maintain a very considerable distance from the power line easement. The power line easement itself is a form of open space and actually would be in a cluster. We are seeking serious discussion with consideration for the grid. Without taking too much more time, I would just tell you that there are two sheets in front of you, one is the basic plan of proposed lot lines and the other is the topographical. We tried dull down the topography so that it doesn't look too busy. Drainage stations are shown on the second sheet. I have, in the past, and will proceed with further salt testing in this area. It's very good soil for draining purposes. It's very good soil for subsurface sewage disposal and that it is of granular and is about as high above the groundwater as you can get in Brewster and it lends itself to the proposed purpose. I think that adequately summarizes this and Paul Sweetser and Jay Merchant are here tonight and can answer questions, if you have any. Chair -Bob do you have comment. Bob B. A couple of lots look difficult to build on. I have serious reservations regarding lot 16 and 8. Bob Perry -Today's scale plan, the contour lines are quite close together. The real Steep terrain is on the North side and is not that steep. I don't disagree that we have an undulating topography, but it's not as severe as you might think. In fact, the flat land on lot 7 is farther from the power lines. Chair -where is the demarcation line between lot 7 and lot 8. There are 3 parallel lines that define the NSTAR usage? Bob Perry -The middle line that you see there is actually the center line of the easement. If you look at lot 8, look to the north of lot 8, it has a bearing in the distance. Chair -That's the southern edge of the easement? Bob Perry -Yes it is. Chair -This is the northern edge of the easement? Bob Perry -Yes it is. The northern edge of the easement is not a lot line. The whole easement is on lot 7. Chair -The whole easement is on lot 7, yes? Planning Board Meeting 4 of 14 August 9, 2006 Bob Perry -Yes Chair -Are you aware that many of the recent subdivision that this board has approved, the board has included in its conditions, the layout of each lot. It would have the building envelope on it with a transitional area and a forever wild area in the lot. Bob Perry - Yes, f am. Chair - If you are going side step the requirement to submit a cluster, would you be willing to consider that sort of arrangement on these lots. Bob Perry - I know, from speaking with Jay, we are. It would be a hybrid arrangement where building envelopes are specified. There is also corridors and other restrictions that can be deeded or organized in some way. You are more familiar with this than I would be. But we are willing to do that. Chair - we have used this approach on several subdivisions over the last couple of years. It has worked out very nicely, you get a nice woodsy subdivision with a lot of privacy around the houses. There is still substantial preservation of open space and it is not a clear cutting. Bob Perry - If that is the desired outcome, the cluster with the restriction of deducting that 4.5 acre easement, just doesn't work. We don't believe that it would be a sure thing when taking that to the board of appeals. Chair - My experience and opinion is that people who are going to be buying high price lots like this will build high price houses. They definitely larger lots give a great degree or privacy. That is just one man's opinion, nothing official about that. Bob Perry - We have come to that conclusion also. If it could be governed on the bounders the outcome would be a win- win. It would provide that cluster affect of preserving some measure of open space and get the applicant where he desires to go for the layout. Chair -John - do you have any comments on this plan. John - I noticed two of these lots are non accessible from other than AP Newcomb Road. Lot 4 and Lot 1, is this correct. Bob Perry -Yes, there are 4 lots on AP Newcomb Road. That's not an absolute requirement. There maybe a way to get all access to all lots from the proposed street, if that is what you are getting at. John -Right, yeah. My personal preference would be to do something like that. I don't know what the rest of the board thinks since it's a preliminary plan. Chair -Those lots do have access to AP Newcomb right now. John -Yes, but you would need curb cuts, on lot 4, because they are not accessible. What Bob P is saying, is they may be able to work something out so those lots could be accessible from the road they are putting in. Bob Perry- While we are on that topic, if there was a desire on some ones part for a curb cut off AP Newcomb road for lot 1 and lot 4, that would be a total of 3 driveways that would exist over a 500 ft stretch of roadway. The lot 4 driveway could sited a 180 feet from Satucket road and it would be 140 feet from our proposed road. Lot 1 would be 150 feet. We could look at that. I don't know how urgent you want us to pursue that, but if it is a strong point, we are willing to work something out if possible. John -It's not a strong point with me. It is just a comment. Bob Perry - I know that Satucket Road was saddled with some driveways recently. I think it would have been better if they weren't. Chair -Bob, where would you find the space for those driveways? Bob Perry- We're minimum on those ANR lots. We would have to work something else out with the lot lines as it pushes into Parcel 1 and that is where we've created a panhandle. It's too complicated to just state that it can be done. Planning Board Meeting 5 of 14 August 9, 2006 Chair -The rectangle block of land between the eastern edge of lot 16 Paul Sweetser -That is a stonewall that goes down through the property. That is just showing a feature. That is not a block of land. That belongs with this particular lot. Bob Perry - I do believe and I can talk with Paul that it may be possible to make that stonewall a lot line and shrink one of the lots in the back. There is a 77K lot back there, although it is encumbered by the power lines. If this is the kind of thing we need to make work, if we can, we would. If we can't, we would be explaining why. Chair - It would be a good idea to try and take those 2 driveways off AP Newcomb if you can possibly do it. Elizabeth, do you have any comments? Elizabeth - I expect that we are going to be seeing a cluster plan. Bob Perry - Is it okay to show it to you now? Elizabeth - Sure. I also wanted to say relative to the 2 subdivisions done recently, the transitional areas/wild areas, the state did not like those plans at all. They specifically stated that they did not want see anything like that. They would much rather see a standard that has to approve conservation restriction easements. It is impossible to enforce the transitional areas and so called wild areas with no definitive lot lines. Bob Perry - I understand that and the best I can offer at this point would be the hope that the residents would themselves in a subdivision that purchased property would take care of that enforcement. As a minimum, we are acknowledging some of the components we looked at with regard to the comparison of the two options, it maybe the best we have. Essentially the roads are similar. Cluster plan passed out. Bob Perry -You can see what happens, it's very spread out. There would be a lot of privacy, but the lots are approximately 20,000. There is only one large lot at the south end of the parcel. Chair - Is that the 3/ acre lot you are talking about. Bob Perry -Yes. You can tell by looking at this there is almost an unlimited adjustments that would need to be made to separate these lots out. Elizabeth -You were mentioning the fact that the power lines to reduce the problem with not be able to include that in open space. If some of the parcels had that as part of the property, anyone who has horses, that is where they put the paddocks. A lot of people make use of the power lines. You can't put structures on it, but you can put in paddocks. It is very standard. It's not necessarily a negative issue, if somebody has land through the power lines. Bob Perry- When we are dealing with just the size lots if we put enough of it into the power lines we can see we would have some very odd shapes and would force homes to be closer to the transmission lines. That's is one of the reasons why the grid gave a number of lots that option of siting whatever they wanted nearer to the easement. Such that a barn could be located adjacent to the easement line, the paddocks could be into that easement. The cluster simply, at least the one you are looking at, doesn't do any of that. Chair -You would still keep the larger lots on AP Newcomb Road. You would simply use the ANR rules. Bob Perry -Yes Chair - I personally like the grid plan better. Elizabeth - I would say ... I don't know how much work went into the cluster, but I'd say it wasn't put together to make us like it either. That's my opinion. Paul Sweetser - We did go through 5 or 6 designs and picked this as the best. Bob Perry -There is a lot of possibilities. Planning Board Meeting 6 of 14 August 9, 2006 Chair -Are there any neighbors here this evening that would like to talk about this? Judy McKenzie -abutter on Rocky Hill Road Where's the bog. There used to be on every previous proposal for this property, years ago a conservation easement. There is a grove of Tupelo's, running pine as a floor underneath that area. It's a beautiful area. Somebody years ago said that should be preserved. Have you seen that area? That shouldn't be built, that was conserved. The only reason I came tonight was to see if that was going to conserved. The rest of it is fine. It would be nice to have neighbors, please drive the coyotes out of there. Elizabeth - I don't think it works that way. Chair - Ms. McKenzie, where is that? Judy McKenzie: It's between Malcolms Bog. Bob Perry - I think it's in the center of lot 9. Chair -Lot 9 has a substantial amount of area that would be difficult to build on because of the conservation restrictions . Bob Perry - We may have some flexibility but I think that we have to look at the location of that. Judy McKenzie -There is currently a road in there that has two branches and it comes out under the power line. It goes along an ancient stone wall. I would like to see that continued to be preserved. Bob Perry -there would be no building anywhere in that area (conservation area). If we can locate that Tupelo Grove, we have to see how it fits and if an adjustment can be made. Judy McKenzie - I thought you were required to do that. Elizabeth -Where is the Tupelo Grove? Bob Perry - it is not on the plan. I think it is near the cul-de-sac at lot 9 & 10. It may be near the lot line between two parcels. If possible, we would treat that like a drainage easement. Elizabeth - is there a hydrologic connection there? Bob Perry - As you would guess there is some patchiness to the soil. Every soil test I've done to up here shows the presence of... it is very sandy, but at the top of the soil there is a silty layer. I think that topography at the Tupelo Grove is something where it has caught enough water and the Tupelo's took. It may have been planted at some point. They are so congregated. There is another one on lot 15...way down, where no one will develop. It abuts the church property. It's just the two areas I'm aware of that have to do with Tupelo trees. Elizabeth -The NSTAR easement has been trouble relative to ATV traffic. It would be very nice if the easement were gated at both ends, with the NSTAR padlock because this is been a horrible problem. Bob Perry - I know, no objection there. The applicant would be happy to gate that. A reduction in the ATV activity would benefit the residents of Rocky Hill. Chair recognizes Jillian Douglass Jillian -Will the Planning Board require an association in this development? Chair - We generally do that and then we make provisions for the deed of the road be turned over to the homeowners association. We can add a little more to that if that is necessary. Bob Perry - I neglected to mention earlier. From my understanding speaking with Mr. Merchant and incidentally at times in the past with the water department, there is an interest in cross connecting the water mains to come up with the Rocky Hill system. It will improve flow and pressure. Elizabeth - Is Rocky Hill a dead end. It will be similar to what was done Harrison Hill Road of Bridle Path. It really makes a difference in water pressure. It is a definite plus. Planning Board Meeting 7 of 14 August 9, 2006 Jillian - My question has to do with AP Newcomb and Bob mentioned that there would be two driveway and a potential still exists for negotiations of those driveways coming off the subdivision roadway. I am not a direct abutter, but do live in the neighborhood, I don't know if I have the authority to express my concerns. Certainly there is a lot of traffic on this road, so anything that could be done to reduce curb cuts would be beneficial. Is there potential to look at other cluster options? I don't know if the board requires more than one. The Chair solicited other comments. Chair as Bob Perry if he was going to take this to the Development Plan Review Committee. Bob Perry - I was of the understanding that was not required for land division. We are open to guidance. I don't think we would be negative to that, but I'm not sure it is required. Chair asks board member is they would like to express any feelings about the plan. John - I like the grid better than the cluster. Robert - I do have a little worry about the number of units that are in there. Elizabeth - I'd like to see the least number of curb cuts on AP Newcomb. If there is anyway we can get shared driveways. If you put them in when you put in the lots, that is the way they are. You don't leave it to the owner's decision. If you get one on lot 4, you'll be pretty close to where we are now. Bob Perry -Brewster allows for lot access overlaying other than frontage. The driveway access easement may be the solution. Chair - I think it probably the feeling of the board, if you can avoid two more driveway cuts for lots 1 and 4 onto AP Newcomb Road we'd be a lot happier with the plan. Bob Perry - We can do that. Chair - I think it's an attractive plan. It's a very beautiful part of town. I'd like to see a motion by the board to approve this preliminary plan with the. reservation that the applicant finds a way to eliminate the AP Newcomb driveways on lots 1 and 4. John -What are approving. Chair - we are approving the preliminary plan and they will go forward and develop a definitive plan using the guidelines that we just laid out. Bob Perry - I don't see the lot lines changing if we use easement for those driveways. There won't be a significant change in the layout as a result of that driveway discussion. We may make a lot line change for other reasons, but it will be very consistent this preliminary plan. John - I'm for the grid plan, however, by taking this vote we are eliminating any further discussion of the cluster. Chair - I think that is right. John - As long as we are clear. I know there is some voice that wants to look at the cluster. Based on that understanding I will move that the applicant proceed with a grid plan that would include accessory road shown on the plan and, hopefully a way of providing access from those two lots. Jillian - If you are approving the preliminary plan, you are knocking out any potential for a cluster. They will not be able build on the easement, but they would be able to build to the edge of their lot. Chair - We are going to try to avoid that. Elizabeth states the does not like to see us do that. Bob Perry - We can try -set those requirements and restrictions in place. Planning Board Meeting 8 of 14 August 9, 2006 Chair - we have a motion on the floor, does anyone want to second it Bob -second Chair -Any further discussion? Elizabeth - I'm very hesitant to knock any further discussion of a possible cluster or some type of hybrid. So I am not going to vote. Bob Perry - We just discussed that the building envelopes and for example the Tupelo Grove and other borders and perimeters outlined. Is that not a hybrid? Elizabeth -Possibly. I just don't know what you are talking about. Are you talking about permanent conservation easements? How will you delineate them and enforce them? Are you talking about permanent restriction around the wetland and Tupelo areas? I haven't walked this lately to know if there are specimen trees and any other things that might cause changes in the roadway? I don't want to say grid and no thought to cluster. I want to leave our options open Bob Perry - I understand, I don't want to back up the hands of time, but let me touch on some points I raised at the very beginning, which had to do with the way we examine the cluster and how it falls out of the calculation when you have to deduct almost 5 acres of NSTAR's easement. I think what you are hearing tonight from the applicant is that there is sincere willingness to have deeded restrictions for example, around the Tupelo's. I have talked with Mr. Merchant about a restriction within the buffer zone to the wetland, which is a considerable land area. The almost 5 acre NSTAR easement already is off limits for structures. Gardens and horse paddocks can go in the easement. Possibly, this is where I have to toss the ball to you because you have seen more of these creations. Perhaps a perimeter belt or some other easement area, which is a matter of record and any lots affected could have those restrictions built into the deeds. That is what we are willing to present and agree to for the board's willingness to look at the hardships with respect to the cluster and agree with the grid. 1 know I'm being general with that statement, but I'm actually being specific, we have the 100 ft buffer on here, you have the NSTAR easement and we've discussed the Tupleo's. Elizabeth - I will say I will check with Jennifer Sopra of the state and review with her what the considerations were because I know they were not happy. It maybe that there are certain issues that we can deal with that would make them happier. I'm not sure. I think enforcement was the big issue. Nobody is every going to be there to decide when somebody when someone has stepped over the line. Bob Perry - Is anyone there with a cluster? I don't want to be argumentative. Elizabeth -They've done two of these for us. I would be happy to contact her and get some feedback. It may be there is something we can do that will make the state more relaxed with this and we can do some modification. I'm just not willing to say that I will go with the straight grid. Bob Perry -The neighborhood itself, if there's an association, I've rarely seen a lot that is cleared. All the neighborhoods in this area look very nice. There are no clusters that I know of. We are looking for that approach. We think it will work, it's an excellent idea. It's awin/win. If you could continue with the first motion, that's fine. If you want to reconsider that I'm all ears. Elizabeth - If I may speak through the chair, I will state that I have recently been on site visits at least one subdivision around town where people weren't necessarily cognizant or paying attention to where the open space of the subdivision was, where there lot line was. We have some decks in the open space that belonged to the common area and we have people who had cleared into the all sorts areas within the cluster. It is very hard to police, unless you have a strong association that is willing to take a stand you lose all the benefit of what you are trying to preserve in the way of habitat. This is a very nice area with very good habitat. Even though it has power lines, power lines are excellent habitat. That is why all the hawks are there. Bob Perry -Sure, that is already taken care of. Elizabeth -that is why you have coyotes there, cause you have lots of mice in the easement. That is what coyotes live on, aside from the occasional other stuff, like cats and dogs. A major portion of their food is mice. Chair - we have a motion on the floor. All those in favor? Planning Board Meeting 9 of 14 August 9, 2006 John -Basically, we want to give them a go ahead to comeback with a definitive plan. Along the lines of what they presented tonight. I'm sure the developer wants to have a nice plan and the board wants him to have a nice plan. So we are not working against each other on this, we are working together. I don't know if a motion is required? Chair - we have to approve or disapprove the preliminary plan. John - Then I say lets approve it and go to step 2. Elizabeth -Through the chair, I just want to clarify this does not constitute approval to this specific plan as a grid. Whatever we end up with could end up quite different from this John -This is not the final approval Elizabeth - I just want to make sure it is very clear in the motion that all we are saying is go ahead and work on something. John -Correct, that is the way I understand it. Chair - 3.5 votes for the preliminary plan. %2 for Elizabeth. Elizabeth will go back and look at previous plans that Merchant/ferry brought in. Informal Discussion Phil Scholomiti -with Ryder and Wilcox Jim Rylander -Sweetwater Forest Regarding possible division of this property. It's one of many tracts that the Rylander's own. This particular piece is approximately 16 acres in size. The Rylanders would like to be able to build 1 house on the 16 acre parcel. They are financing the project and don't want to encumber all 16 acres when dealing with the bank. This plan is an attempt to cut off 3 acres from the 16. This is satisfy the bank and enable them to build the house. Just to review the zoning, the property is situated in RM. It requires a minimum of 60,000 sq. feet and the 3 acres satisfies that. There is an existing way that crosses the property. At the northwest corner there is a way across the property. The way is in excellent shape, approximately 16 to 22 feet. The right of way is T base gravel and well maintained. Elizabeth - I have a problem with the dirt road bylaw on this. You can put up one house but, if you subdivide it you lose to dirt road access. If you put up one house now and then bring the road to standard then you can put in your subdivision. I don't think you can do this. Duane Landreth -Under 290-8, there is a waiver provision. The board may waive strict compliance with these access requirements upon its determination that the waive question will still provide adequate width, grades and construction to serve potential uses of land abutting the way in question. In reaching such determination the board shall consult with the department of public works, police chief and fire chief. There are really two rules -One - if its under the standards of adequacy there is a compliance with 290-8. The other is the board does have the authority to grant a waiver related to this specific usage. In this case we are talking about specific uses which would link to one particular house. The minutes of the meeting can reflect the fact that it takes no posture with regard to the additional lot that is being carved off. I'd be comfortable with you seeking counsel form Town Council to ask if this is indeed within the scope of your authority. It is a waiver we are asking for. If the minutes reflect the fact that this is not reflecting two lots that are created are for both lots. The bigger lot is subject for further consideration. Elizabeth - I think there a lot of questions on frontage. I don't think we've done this before. I would like a letter from Victor and the Town Council. Chair -There is a provision on the bylaw that says that -one single family dwelling may be erected on any lot regardless of common ownership with joint land provided such a lot is shown on a plan endorsed approval under the subdivision control law not required and the lot complies with all applicable provisions of the zoning bylaws and the lot must have been created after June 25, 1978 and must be buildable under other applicable non zoning provisions of the law. Planning Board Meeting 10 of 14 August 9, 2006 It would seem to me that says you could ANR the big lot and since you have that good road coming down to it, it is a buildable lot. The ANR on the smaller lot leaves a lot with 150' of frontage. That could be determined in the future. Bob - I agree with Elizabeth, I would like to see something from Victor. I would also like to see something from counsel because we've had so many of these dirt road things come before us. I wouldn't want to make a mistake. John - From a practical standpoint, I agree with the presentation... but also agree we should get something from Town Counsel that it is legal. Bob -Something from Victor as well...that he is happy with it. John - Practically, I think the presentation is great. I understand what they want to do. Let's just make sure that we can do it. Chair - It certainly seems reasonable. The language of the bylaw, it certainly looks like the lot would have been created after June 25 if we ANR'd it right now. There is certainly decent access. We will contact Victor and Town counsel. James Rylander - We were here in July, when the cul-de-sac plan was presented you seemed to have no problem with it as far as speaking to counsel. We were just checking with Victor to see if it is a buildable lot. He got into the dirt road bylaw which really doesn't apply here. Why are we backing up now. Chair -Because you are whacking off 3 acres of this big lot, it takes it out of the umbrella of the dirt road bylaw. John - We are not talking about dirt road bylaw now. Elizabeth - To build at all...where is the frontage? What do we have frontage on? If we are going to do an ANR, what do you have frontage on? The dirt road? John -Can we waive that part? Chair -Can we separate the 3 acre lot and still maintain buildability on the 16? Duane Landreth -One more point - If we came in with a subdivision, where we basically added a cul-de-sac with a 150'. Created a cul-de-sac on our lot off of this way, the requirement would be external access would have to be 40' out to the public way. The board would have the authority, under the subdivision rules and regulations to waive that. Would it not? Elizabeth -You would have to bring it up to town standards. Duane Landreth -All I'm saying is the board would have the authority to waive that. Elizabeth - I don't know if we've ever done that. That has a lot that goes with it. Duane Landreth - My point is, the board has the power. It's about the power, not whether you do it as a matter of policy. Motion to continue this while we investigate this with Victor and Town Counsel. John -can we continue to our next meeting. If the town counsel says okay and Victor says okay. What else do you need before you come with an ANR. What the board is facing, if its legal and an agreeable with Victor -Fine. Duane Landreth -Shall we check back with you after you've heard from Town Counsel and Victor? The Planning Board will refer the waiver matter to Zisson and Veara as below: The Planning board is referring to Zisson and Veara for legal advice. 1. Dirt Road Bylaw -Subdivision 290.8 and Chapter 179-26, Frontage/Subdivision issues. The way identified at the top left corner of the lot connects to a private roadway within Sweetwater Forest. Duane Landreth is the attorney for the applicant James Rylander. Mr. Rylander wishes to subdivide 3 acres at the top of the lot, giving himself "frontage" for the lot. This is not allowed under our dirt road bylaw. Planning Board Meeting 11 of 14 August 9, 2006 Myer Singer -Vesper Pond Drive We are looking for you advice and asking you to put on your planning hat, if you will, with a matter that will be going to the board of appeals. Looking to see if something can be done about the problem. Here is a reduced copy of the plan of the land. You might remember it. The property is on 6A at the corner of Vesper Pond Drive. Elizabeth -This is the one that was just in Myer -This plan was in a while ago, November 2005. One of these lots, lot 5 in the middle has been made into two lots. They are now a total of 8 lots rather than the 7 previously. This property is in the Village Business zoning district. Under the table of use regulations one family detached dwelling, permitted as a matter of right in the VB zoning district. If you look at table 2 which the second one from the bottom, says VB any other permitted structure, lot area is 15,000 sq. ft. Chair -That crashes up against the 60,000 sq. ft. Myer -Exactly. Building commissioner, Victor Staley has looked at it and said, I have two paragraphs that conflict with each other and to be conservative he is saying you need 60,000 sq. ft. to build a single family house. I've got copies of copies of a letter from Victor that basically said "no". Elizabeth - do you have copies? I think we should get that and read Copies of letters were given out. Chair - Mr. Singer, we have a long term contract with a consulting firm to remove these anomalies from the zoning bylaws. Myer -Maybe this is something that could be considered at the appropriate time for a zoning amendment. That is not beyond the realm of possibility. We have filed an appeal with the Board of Appeals. In part to gain some time to talk with you. In part, because we will go to the board of appeals and ask for their ruling. What we would like the planning would consider it would, and if you agree that houses is reasonable in this area. Would you write a letter to that affect to the Board of Appeals. On occasion, you do give the board of appeals advice or your opinion. Now if you agree with Victor, you aren't going to do that. There has been some initial exploration with the neighbors, there will be more. The neighbors would rather have residential neighbors rather than people with businesses on the street. I think we went over a plan previously, we saw an plan that would be common driveways and there would only be 3 new curb cuts on rte 6A. Interesting enough, if Victor is correct, it would create some interesting situations. There is the cluster subdivision bylaw, that says you don't need 60,000 to 100,000 sq. ft lots in certain areas. You can build on lots that are smaller, approx 20K sq feet. If Victor is right, you cannot have a cluster anymore. Certainly, I don't think this was anticipated when the bylaw was passed. Interesting enough the 60K sq. ft came into effect the same year, same town meeting that the town went from 60,000 to 100,000 sq feet in certain areas. The Village Business district was adopted several years after. If Victor is right, again we have a situation the town adopted a bylaw with a village business district that can have housing in it. Yet it was null and void at the time it passed because you already had the 60,000 sq foot. Chair -Doesn't the latest bylaw modify previous bylaws. Wouldn't the 15K sq ft at a later date prevail? Myer -There is a lot of logic to that. I can't say that the law states that specifically. There is certainly logic to it and that is why we think what was intended is that 60K sq ft. applies to a land area requirement. Not a minimum lot size requirement. Chair -What size are you dealing with? Myer -The lots that are proposed range from 20K to 35K sq. ft. If the planning board agrees that what could be permitted here could be single family houses on less than 60K sq. ft., we would ask you to express that to the ZBA. I've discussed this wit the owners of the property and we know whenever a question like this is raised you can get a negative answer. Elizabeth -How about if we ask you to wait while we get an opinion? Planning Board Meeting 12 of 14 August 9, 2006 Myer -Sure. Take your time. We are going before the ZBA on September 12. Certainly, you can take time to consider your opinion. Unfortunately, you are not meeting again before September 12. We could ask the ZBA to postpone their hearing until after the Planning Board met. Elizabeth -What is your specific request in front of the ZBA? Myer -There are appealing the building comissioner's decision that you have to have 60K sq. ft for a single family house. Even in a zoning area that doesn't require 60K sq. ft. for a lot. John - We certainly have very little VB zone land or even CH zone land in Brewster. It was designated for that purpose and now we are going to convert it back to houses. This takes away what we had to begin with. I can see apartments there. That would fill a need of the town. Myer - we are not sure multi-family would work here under the zoning bylaws. John - It would require a special permit. My feeling is we just don't have that much land that you can do anything with except build single family houses on. This is like gold. I'm talking as someone that owns a commercial space in Brewster. Myer -This could be single family housing as a matter of right, if the owner chose to have 60K sq. ft. lots. There would be fewer lots. There could be 3 houses here. Elizabeth - We will discuss John Whitten at our upcoming meeting. The board is concerned with traffic issues. Elizabeth -the obvious issue is this is a VB and we get chastised for cutting down on area where people can have businesses. I've certainly heard that when we removed the Jolly Whaler from that commercial area. It's a question, do we want residences or do we want businesses. There is the whole density thing, if you are putting in 8 houses where you should be putting in 3. There is a big issue of traffic and where to access. Is VB on both sides of Vesper Pond? Myer -only one side Elizabeth -You will have an issue of entering through a residential area to get to a business area. There are a lot of issues here. We'll have to talk to Victor and Town Council. Jane - I have nothing to add, everyone has already said what I would have. Bob -There is a lot of traffic in that area The board will refer this issue to Town Counsel -Zoning Bylaw conflict between 11 & 12 and tables 1 & 2. Discussion on Ferretti's Market Elizabeth - we never received a response to our letter. I brought up at the Selectmen's meeting the other night. They are going to be meeting with Mr. Ferretti because they have some drainage issues on the driveway in the front. There are still lot of issues in that area that the town has to deal with. They will be working with him on that. They implied that they would also talk about the parking lot. I'm not sure what that means, because we have an unpermitted parking lot which we have let happen without saying anything. I don't know where we stand. Jillian - I was there this weekend and noticed all of the parking is illegal. There is parking in the rear that no one uses. The addition of parking is probably a good idea, but not necessarily be where you want it. Elizabeth -It's unpermitted. They have a huge lot behind them that is not being used. Jillian - A lot of patrons don't know that there is a lot back there. Elizabeth -that is one of the problems. This area has been used as a parking lot because the town did not re-vegetate it, as they should have. I don't know where that leaves us. Planning Board Meeting 13 of 14 August 9, 2006 Chair - Is that town land? Elizabeth - No, we have an easement under it. The town removed the vegetation to work on drainage. John -Did Ferretti's go before the COPD. Elizabeth - No, they just did it. Jillian -The town acquired the easement for drainage. The town did all the clearing and then Ferretti's seeing the are looked awful, they put down the oyster shells. Bob - It was mud. John - He needs to have signage to make people realize that there is parking in the back. Elizabeth- They need to have a rear entrance. Bob -They need to figure out how they can put the tractor trailers in the back. The deliveries were being done in the front. There were 3 delivery trucks and no place for patrons to park. John -Isn't this Victor's problem? Elizabeth - We sent a letter to the Selectman already and it's a bit touchy as they need to work with him right now on other drainage issues. We can't neglect this. I'm not sure what we should do or how we should do it. The longer it goes on without Mr. Ferretti knowing it is an illegal parking area, the harder it will be. Chair -The problem is he has a good business and runs it well. He attracts a lot of people. John - We should be in a position of helping him to get this little things straightened out. Elizabeth -Use the rear parking lot that we gave you permission to build. We have to tread carefully, because it's been allowed to go so long. We have to work with Bob Bersin, Charlie and Mr. Ferretti to make it known that parking lot is not going to get it. He has to make people aware that there is a back parking lot. John -Wouldn't it be better to have someone speak to Ferretti's on how we would like to get him in conformance. Elizabeth -Bob Bersin in meeting with him. It's a touch situation. Chair -Can the town that it either be vegetated? Jillian -That was part of the condition of the easement. When Mr. Ferretti granted the town the easement to do the drainage, I don't think he ever intended it to never be restored to its prior condition. Chair - I would think the town dug it up and it's the town's obligation to revegetate. Jillian -that has been the position all along. We didn't give you permission to create a parking lot on Mr. Ferretti's property. In fact, that is what the town did. At the moment, there are still drainage issue going on. Decision was made to talk to Bob Bersin about this issue. Bob motioned the meeting to adjourn, John second the motion. Planning Board Meeting 14 of 14 August 9, 2006