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HomeMy Public PortalAboutPB MINUTES 2009-05-26 FOR OFFICIAL USE ONLY PLANNING BOARD May 26, 2009-Minutes A meeting of the Orleans Planning Board was called to order at 7:00 p.m. in the Nauset Meeting Room at the Orleans Town Hall. Present: Chairman: John Fallender; Vice-Chairman: Seth Wilkinson; Kenneth McKissick; Associate: Gary Guzzeau; Chet Crabtree. Planning Department Staff: George Meservey; Secretary: Karen Sharpless. Board of Selectmen Liaison: Jon Fuller. Absent: John Ostman; Clerk: Paul O'Connor. Also Present: Dan Connolly(Tree Warden); Mark Nixon and Larry Zabielski(S and L Tree Service). NEW PLANNING BOARD MEMBER Fallender welcomed Chet Crabtree as an Associate member of the Planning Board. Fallender requested that Associate Planning Board members Gary Guzzeau and Chet Crabtree vote during this meeting in the absence of John Osunan and Paul O'Connor. 7:00 P.M. -SCENIC ROAD TREE HEARING-Mark Nixon, 49 Gibson Road In the absence of the Planning Board Clerk, Fallender read the legal ad into the record. The owner of 49 Gibson Road, Mark Nixon explained that he has been renovating his property since he purchased it in 1998 and has obtained all necessary permits. Nixon described the landscaping renovations he started in 2008 including the cutting and removal of six trees on the steep northern bank of the property, stating his opinion that they were dead or could be hazardous to overhead electrical lines. Nixon informed the Planning Board of his intention to plant various shrubs and trees on his property and has been using the services of S&L Landscaping with the tree removals. Nixon reported that he was informed by his neighbors that his only concern with tree removals was that he needed to stay more than 75' away from the water. Nixon stated that he was unaware that the trees were located in the town layout(when he requested that they be cut down and removed)until he was notified by the Orleans Tree Warden, Dan Connolly. Nixon stated that he immediately filed the application for a Scenic Road Public Hearing for an"after the fact"Planning Board approval when he was contacted by Dan Connolly. Correspondence: Meservey stated that no correspondence was received by the Planning Department on this issue. Planning Board Minutes May 26, 2009 Page 1 of 6 Discussion: Connolly agreed that he approached Mr.Nixon when he became aware of the cutting and removal of multiple trees in the town layout in front of 49 Gibson Road, and informed Mr.Nixon that he erred in removing the trees without prior approval by the Planning Board since the property is located on a Scenic Road. Connolly notified Mr.Nixon that he would have to file the paperwork for a Scenic Road Public Hearing at the Planning Department immediately. Connolly stated that he has obtained an Independent Appraisal from a consulting arborist for Bartlett Tree Experts who determined the value of the destroyed town trees to be worth approximately $15,900.00. Larry Zabielski(S and L Tree Service) stated that he is unfamiliar with the Orleans rules for cutting trees and noted that he has worked with the Conservation Commission many times. Zabielski stated that it was regretful that this incident occurred, since his brother used to handle the paperwork for tree work in Orleans. Meservey described multiple photographs showing the extent of the damage and the remaining stumps in the town's layout. Meservey noted that according to Town Counsel the town trees were covered under the following portions of the Massachusetts General Law regarding The Public Shade Tree Act: G.L.c.87,§3 provides that no public shade tree may be cut,trimmed or removed without the permission of the town tree warden by any person,even if the person is the landowner where the tree is located. The tree warden must hold a public hearing;and if there is written objection,the work must be approved by the selectmen or mayor. G.L.c.87,§6 provides that violations of§§3,4 or 5 shall be punished by forfeiture of not more than$500.00 to the use of the town. G.L.c.87,§11 provides that whoever willfully,maliciously or wantonly cuts,destroys or injures a tree, ...which is not his own,standing for any useful purpose,shall be punished by imprisonment for not more than six months or by a fine of not more than$500.00. G.L.c.87,§12 provides that"whoever wantonly injures,defaces or destroys a shrub,plant or tree, ...in a public way...shall be punished by a fine of not more than$500.00,and shall in addition thereto be liable to the town or any person for all damages to its or his interest in said shrub,plant,tree or fixture caused by such act. Whoever by any other means negligently or willfully injures,defaces or destroys such a shrub,plant,tree or fixture shall likewise be liable to the town or any person for all damages to its or his interest in said shrub,plant,tree or fixture caused by such act." G.L.c.242,§7,specifies that one who willfully and without license cuts the trees of another shall be liable in tort"for three times the amount of the damages assessed therefor." Accordingly,the Town would only be entitled to triple damages if the Town were successful in an action brought under G.L.c.242,§7. The Town would have to bring an action against the tree cutters and would have to establish that the trees cut were willfully cut and were located on Town property. If the tree cutter had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to act,then the tree cutter would only be liable for single damages only. Meservey noted the following comment in Town Counsel's letter: The statute does not prescribe how the damages are to be measured. The most common measure of damages are(1)the value of the timber wrongfully cut,or(2)the diminution in value of the property as a result of the cutting. However,the courts have also allowed replacement or restoration costs as a measure of damages where diminution in market value is unavailable or unsatisfactory as a measure of damages. (Glavin v.Eckman,71 Mass.App.Ct.313(2008)(where the value of the timber cut is negligible,or the diminution in value of the property owing to the cutting is minimal or nonexistent a different measure of damages may be needed to compensate the plaintiff and to deter the wrongful cutting);Ritter v.Bergman,72 Mass.App.Ct.296(2008)(court awarded a restoration cost as measure of damages). When applying restoration costs as a measure of damages,a test of reasonableness is imposed.Glavin v.Eckman. In response to a question of contractor liability, Meservey noted the following from Town Counsel's letter: It would appear that the contractor should also be held responsible for violating the public shade tree act and cutting down the trees without the benefit of a permit. Planning Board Minutes May 26, 2009 Page 2 of 6 Meservey noted that there are clumps of tree stumps on the bank which show multiple trees growing in one place. Meservey noted the sections of law listed above which indicated that the law provides for punitive measures to the town. Meservey noted that the Tree Warden can assess a fine of$500.00 per tree, as well as the town's ability to seek damages through the court system. Meservey noted that there is a tree account to which tree replacement funds can be deposited at the discretion of the Tree Warden. Meservey reminded the Planning Board that they are responsible for issues under the Scenic Road Public Hearing. Connolly indicated that restitution for the cut trees could be discussed, but did not recommend replanting any trees on the slope, but rather funds could be used to plant trees elsewhere in town. Connolly noted that it is difficult to make a definite determination on the health of trees after they are cut down, but he has treated them as valuable oaks during his tenure as the Orleans Tree Warden. Connolly stated his previous intention to maintain the oak trees with their arching branches as a canopy over Gibson Road. Connolly denied the statement Mr.Nixon made that the trees were dead, and stated that if the trees had previously been considered to be dead by the Tree Warden, they would have been removed as a safety priority. Planning Board members discussed the location of the trees and noted that they were well within the town's layout. Wilkinson questioned Connolly on whether the tree stumps would be viable candidates for stump sprout management since they were deciduous trees. Connolly expressed concern over whether the regeneration would shoot out and impede site distance on the traveled way. Connolly stated that after consultation with the Tree Warden's Association, it was suggested that replacement trees would be handled as follows: Replacement of one 10"tree would result in planting five 2"trees. Connolly stated that the pitch pine species is not worth counting in the replacement equation. Connolly acknowledged that the property owner has planted a juniper hedge. McKusick questioned the width of road layouts on scenic roads in town and was informed that is it approximately 10' from the edge of the road/pavement. When Planning Board members questioned whether Connolly would have approved the application for the removal of the trees in question at 49 Gibson Road, Connolly responded with an emphatic"No". Connolly also stated that the stumps will anchor the slope for the new few years,but he would not recommend replanting trees at this location. Connolly acknowledged that juniper will work as a reasonable erosion control and it might be possible for the property owner to build a retaining wall to anchor the hill. Nixon informed the Planning Board members that when he bought the property in 1998, the entire bank was bare and washed into the road. Nixon stated that he has purchased more junipers and intended to cover the bank with yews. Connolly restated that his main concern is due to the removal of the town trees (which were a town asset)rather than what to do with the sloping bank. Wilkinson pointed out the need to give Mr.Nixon time to consider the concerns brought up at this meeting by the Tree Warden and Planning Board members. Wilkinson noted that the Planning Board has to deny this application for the removal of trees at 49 Gibson Road and indicated that he did not believe that there was any malicious intent in the removal of the trees. Wilkinson questioned if there was a possibility of planting trees near the "Children" sign, and urged the Planning Board members to give Mr.Nixon time to come up with a mitigation package in consultation with the Tree Warden. Meservey reminded Planning Board members that Massachusetts General Law includes provisions for damages in cases such as this. Planning Board members and the Tree Warden agreed to continue the Scenic Road Tree Hearing for Mark Nixon for property located at 49 Gibson Road to the Planning Board meeting on June 9, 2009 to allow Mr.Nixon to work with the Tree Warden on a restitution plan. Planning Board Minutes May 26, 2009 Page 3 of 6 MOTION: On a motion by Kenneth McKusick, seconded by Seth Wilkinson, the Planning Board voted to continue the Scenic Road Tree Hearing for Mark Nixon for property at 49 Gibson Road to the Planning Board meeting on June 9, 2009. VOTE: 5-0-0 The motion passed unanimously. APPROVAL NOT REQUIRED-Joan Sparrow, Peter B. Sparrow & John K. Sparrow-Namequoit Road and Route 28 McKusick recused himself from discussion and voting on the Sparrow Approval Not Required application due to his residence location on a neighboring property. Meservey explained the Approval Not Required application by Joan Sparrow, Peter B. Sparrow and John K. Sparrow for the division of land located at the corner of Namequoit Road and Route 28. Meservey noted that Planning Board approval of the Approval Not Required will enable the Town of Orleans to purchase land(known as Lot 113) for open space as approved by a vote at a previous town meeting. Meservey described the Approval Not Required which will preserve a building lot with street frontage for the homestead. Meservey noted the name will be known as the Kenrick Woods property. Meservey stated that the application meets all of the Approval Not Required filing requirements and there is no reason to withhold Planning Board endorsement of the plan. MOTION: On a motion by Chet Crabtree, seconded by Gary Guzzeau, the Planning Board voted to authorize the Planning Board Chairman to endorse the Approval Not Required plan prepared for Joan Sparrow, Peter B. Sparrow and John K. Sparrow, dated February 4, 2009, scale 1"= 50',prepared by Ryder& Wilcox, Inc. VOTE: 3-0-1 The motion passed by a majority. (Seth Wilkinson abstained). McKusick returned to the meeting at this point. BUILDING HEIGHT ZONING REFERRAL FROM ANNUAL TOWN MEETING Planning Board members discussed the zoning which passed at the May 2009 Annual Town Meeting and the referral of the building height zoning change proposal to the Planning Board for further review. Crabtree noted the importance of zoning remaining consistent with the Orleans Comprehensive Plan MOTION: On a motion by Seth Wilkinson, seconded by Kenneth McKusick, the Planning Board voted to indefinitely postpone further action on the issue of building height. VOTE: 5-0-0 The motion passed unanimously. PLANNING BOARD MEMBER RE-APPOINTMENTS Fallender noted that he and Seth Wilkinson are scheduled for re-appointment by the Board of Selectmen and both have expressed an interest in remaining on the Planning Board for another term. The Board of Selectmen will vote on all committee reappointments in June and they will become effective July 1, 2009. Planning Board Minutes May 26, 2009 Page 4 of 6 COMMITTEE APPOINTMENTS Planning Board members agreed to postpone Planning Board appointments to other committees such as Wastewater Management Steering Committee, Zoning Bylaw Task Force and the Community Preservation Committee until after the Planning Board reorganization in July 2009. McKusick gave a summary of the responsibilities of the upcoming Board of Water and Sewer Commissioners which will commence in 2009 and will require an appointment of a representative from the Planning Board. CAPE COD REGIONAL POLICY PLAN—Review of Growth Management Systems Planning Board members discussed the Growth Management Systems section of the Cape Cod Regional Policy Plan through the Cape Cod Commission dated January 16, 2009. Planning Board discussion included recommended town actions for the following issues: • Land Use (LU) • Compact Growth and Resource Protection(LU1) • Local Comprehensive Plans (LU1-T1) • Land Use Ordinances and Bylaws (LU1-T2) • Capital Facilities and Infrastructure (LU2) • Integrated Infrastructure (LU2-T1) • Smart Growth Investment Policy(LU2-T2) • Infrastructure Efficiency Policy (LU2-T3) • Rural Lands (LU3) • Municipally Owned Lands (LU3-T1) • Town Rural Lands Protection Tools (LU3-T2) • Right-to-Farm(LU3-T3) • Economic Development(ED) • Low Impact and Compatible Development(ED1) • Incentives to Locate in Economic Centers & Industrial& Services Trade Areas (ED1-T1) • Targeted Public Investment(ED 1-T2) • Working Agricultural Lands (ED 1-T3) • A Balanced Economy(ED2) • Workforce Housing Incentives (ED2-T1) • Preserve/Reserve Specially zoned Areas (ED2-T2) • Support of Agritourism(ED2-T3) • Regional Income Growth (ED3) • Formula Business (ED3-T1) • Value-added Products and Services (ED3-T2) • Business Climate (ED3-T3) Planning Board Minutes May 26, 2009 Page 5 of 6 o Infrastructure Capacity(ED4) • Capital Facilities Plans (ED4-T1) • Regional Collaboration(ED4-T2) • Distributed Energy Generation(ED4-T3) MINUTES FOR APPROVAL: April 28, 2009 MOTION: On a motion by Kenneth McKusick, seconded by Seth Wilkinson, the Board voted to approve the minutes of April 28, 2009. VOTE: 4-0-1 The motion passed by a majority. (Chet Crabtree abstained). ADJOURNMENT MOTION: On a motion by Seth Wilkinson, seconded by Kenneth McKusick, the Board voted to adjourn at 8:48 p.m. VOTE: 5-0-0 The motion passed unanimously. SIGNED: DATE: (Paul O'Connor, Clerk) Planning Board Minutes May 26, 2009 Page 6 of 6