TOWN OF SHARON ZONING BOARD OF APPEALS MINUTES OF FEBRUARY 25, 2009
A regular meeting of the Town of Sharon Zoning Board of Appeals was held on Wednesday, February 25, 2009 at 8:00 P.M. in the lower level of the Town Office Building. The following members were present: John Lee, C hairman; Kevin McCarville, Secretary; Seth Ruskin, Lee Wernick.
Mr. Lee opened the meeting at 8:05 P.M. He stated we are recording this meeting for Mr. Okstein, who is not present.
8:05 P.M. New Hearing – Trvong & Mai Tran, 25 Meadow Road, Case No. 1631:
Mr. Lee stated that this meeting was originally scheduled for January 28, 2009, but was continued to tonight due to a snowstorm. The hearing was never opened. Mr. Lee read the public hearing notice. The applicant was represented by Tracy Sharkey, Property Acquisition Specialist, Guaranteed Builders, 14 West Street, Douglas, MA.
Ms. Sharkey requested that this meeting be continued to the board’s next meeting due to a water bill and tax issue and also because the wetlands on this property have not as yet been delineated. Mr. Lee read correspondence that was received from the Board of Health and Conservation. Ms. Sharkey stated she had received an unfavorable recommendation from the Board of Health because the septic system was too old. They are going to get a permit build a new one, but as yet they do not have one.
Mr. Lee continued this hearing to March 11, 2009 at 8:00 P.M. as requested by the applicant’s representative.
8:12 P.M. Continued Hearing – Ronald Lubin, 12 King Philip Road, Case No. 1625: Mr. Wernick moved to continue this hearing to June 10, 2009 as per request of the applicant. Motion seconded by Mr. Ruskin and voted 4-0-0.
8:20 P.M. Sharon Commons Phase 2 Plan Endorsement: Mr. Lee stated that the board would like to endorse these plans in order to have a plan of record. Mr. Houston stated the plans are not ready tonight and asked that this be put on the board’s March 11, 2009 agenda in order to allow Mr. Houston time for thoroughly review the plans. It was agreed by the board and the applicant that a copy of the endorsed plans will be kept on site at all times. Mr. Lee placed this on our 3/11/09 agenda.
8:30 P.M. Continued Hearing: Sharon Residences, Case No. 1632: Mr. Lee asked the applicant if he has met with the neighbors. Mr. Shelmerdiine stated yes and the neighbors submitted a list of their concerns to him. The letter addressed fencing, landscaping, etc. Mr. Lee asked that any agreement made be submitted to the ZBA to be incorporated into the conditions of approval. Mr. Shelmerdine agreed. He stated he will take each of the abutter’s comments and put into a form letter that all parties will agree to. Mr. Lee stated that will protect the neighbors and the applicant.
Mr. Lee asked if they are looking for a reduction in density from 29 units to something lower.
Louise Patane, 665 S. Main Street: her property line is 30’ from her back door and there are two duplexes sitting 5’ from her property line. She doesn’t find that congruent with a 40R. The meeting that took place with the applicant was informational. The entire group is looking for various things. They neighbors want the access road removed entirely. This shouldn’t get lost in the individual letter of agreements.
Mr. Shelmerdine stated there will be 100 apartments and 29 townhouses. The main access will be off Old Post Road once this is built out. This is being built in phases. A 40R is designed to require minimum density and they can’t go below that. Mr. Lee stated that the bylaw sets density, but it is a target density. Mr. Shelmerdine stated they can’t go less than 29 townhouses. He will get Mark Bobrowski in here to explain it. The minimum requirement came into effect after town meeting accepted 40R. They couldn’t get 30 in because of environmental constraints. They are locked in with the MOU to not havemore than 29 townhouses. Mr. Lee stated that according to “Smart Zoning” public transportation is key to smart growth and also existing commercial districts. He asked if they are trying to tie into Shaw’s as the existing commercial district. Mr. Shelmerdine stated no. It has been concluded by the State that this site is eligible. If that wasn’t met, they couldn’t go forward at town meeting.
Mr. Lee asked Mr. Shelmerdine to bring in Mr. Bobrowski, Professor Land Use and Planning. He worked with the town on this. Mr. Shelmerdine agreed. Mr. Lee stated that the town approved an overlay district on this. Now the ZBA needs to work with the abutters and applicant. Mr. Shelmerdine stated he has a Letter of Eligibility. He will submit it to the board. He also had a letter from DCHD dated 11/14/09 approving the requirements, commercial sites, public transportation. This meets all the criteria.
Mr. Lee stated that under 40R Section 14, the town receives payments of $75,000 plus $3,000 per unit. The town is planning on getting that. However, the town must repay if no construction has been started within three years on the site. He stated that a Letter of Eligibility can be revoked. Mr. Shelmerdine agreed, but doesn’t think this one under 40R can be revoked. Mr. Lee stated he might agree because the town created an overlay district. Mr. Shelmerdine stated the town will get $200,000 payment for the construction of 168 units. He doesn’t think the Letter of Equity can be revoked because town meeting passed this.
Mr. Shelmerdine stated they are asking for site plan review and for 29 units to be approved. Mr. McCarville asked how many will be affordable houses? Mr. Shelmerdine stated they will have to give the board an Affordable Housing Plan. They will show the board a proposal later. Mr. Lee asked how many units will be affordable and Mr. Shelmerdine stated he doesn’t know yet. Mr. Lee stated the town doesn’t want them all stuck in the back. He expects 20% to be affordable. Mr. Shelmerdine stated that can be a condition of approval. Mr. McCarville stated that if he was an abutter, he would question the transportation. How can the State approve that? Mr. Shelmerdine stated that not every one has to be met, they just have to meet a certain amount of them. He doesn’t get involved in this. A 40R requires an Eligibility Letter from the State before Town Meeting can vote.
Jesse Moreno: they look at every site individually and every site can be looked at differently. Mr. Lee stated that one of the reasons that Wilber School was approved was because they could walk to the train station. That was made very clear that there was access to public transportation because of that.
Mr. Shelmerdine stated that public transportation is just one of the criteria. There are 15-20 criterias and you don’t have to meet all of them. Mr. Moreno stated it can be a proximity to these things.
Mr. Lee stated let’s talk about the actual site and concerns with the lofts, exercise rooms, etc. These are a problem. You need a new set of plans without these. This board is not in favor of that. We would condition not to allow them. Mr. Shelmerdine stated that anything not labeled a bedroom will be changed.
Mr. Lee asked if they have the wetland lines delineated yet. Mr. Shelmerdine stated yes. Mr. Lee asked if they are outside the 100’ buffer zone. Mr. Shelmerdine statd that doesn’t apply because 40R is self-contained zoning. The town’s bylaw doesn’t apply. Mr. Moreno stated they are outside it. Mr. Lee disagreed. Mr. Moreno stated it is only bordering vegetated wetlands. Mr. Lee asked if Greg Meister agrees with that. Mr. Moreno stated yes. It is 100’ from bordering vegetated wetlands. Mr. Lee asked if this is a revision from a previous plan and Mr. Moreno stated it was noted and corrected from the other plans. Mr. Shelmerdine stated they have to go to Conservation any way.
Mr. Lee asked about the lofts and exercise rooms. Mr. Shelmerdine stated there will be an open area to be part of the master suite and there will be no doors. Mr. Wernick stated he doesn’t want the bath doors to open toward the loft area. Mr. Lee stated you are trying to modify a bad plan. We are not going to sit here and design it for you. Mr. Shelmerdine stated they will bring a new plan. Mr. Wernick stated he would like the doors to open to the bedroom. We will not engineer this. Mr. Lee stated we will not discuss areas to be re-engineered.
Brian Florek, 147 Old Post Road: asked if the A.G. signed off on this project. He asked if they have been approved by the State. Mr. Lee stated that he raised that question and was concerned that we are proceeding with a change not approved by the A.G. He sent a letter to town counsel last week and town counsel stated that the zoning change goes into effect when the town votes it and we are only awaiting for approval from the attorney general. He is going ahead at his own risk because we have until March 9th to have this approved. The attorney general almost always approves zoning changes, so we can proceed with this.
Mr. Shelmerdine stated he will change the bedrooms and come up with a new plan. They have to eliminate the study because it is a closed door. They will change that configuration. Condo documents will clearly say what the board wants.
Mr. Lee questioned the access out to S. Main Street. The board and neighbors have a problem with that. Mr. Shelmerdine stated the Eligibility Letter that came from DHCD conditioned payment on building the road. The first $200,000 is contingent on that. When discussing this with the Board of Selectmen, they entered into a Memorandum of Understanding with the Board of Selectmen. Several of those payments are they need to install field lights at the high school for $300,000. Mr. Lee stated he wants the people to know that this has nothing to do with the Zoning Board. This is a pre-existing agreement with the Board of Selectmen. Ms. Patane stated she doesn’t know what this has to do with the access road. Mr. Shelmerdine stated it was a Board of Selectmen sponsored article. They did not have interest in this unless they did certain things. They would not have supported the Commons Overlay District unless the applicant made benefits to the town. They had to put in high school lights, make the Housing Partnership, pay $1,000 on the sale of each of the first 25 market rate units. Additionally, the Board of Selectmen stated the $200,000 was contingent on this road and that they needed the money by April 1, 2009. Therefore, Mr. Intoccia agreed to advance the town $200,000 on or before April 1, 2009 regardless of whether or not the road was built. They can only do this if they are given a permit for the first phase of this. Mr. Shelmerdine stated that the MOU states the permanent access will be from Old Post Road. The MOU also says there can be a temporary access. To honor the commitment for the town for this payment is to have a permit to get financing. They are asking the ZBA for 29 units through site plan review.
Mr. Lee stated if you are asking for 29 units will 7.6 be affordable? Mr. Shelmerdine asked if they can take away the agreements. Mr. Lee asked if they want to take away the MOU? Mr. McCarville stated the people in town have a right to know what is happening.
Mr. Shelmerdine stated they are building a treatment plant to service 168 units and it will be located in the back. This has been reviewed and approved by the MEPA process. They also included a traffic analysis for 168 units. Mr. Lee stated they only had one treatment plant. Mr. Shelmerdine stated it was then split because they needed two.
Mr. Shelmerdine stated they are asking the ZBA for 29 units. They are in front of the Board of Health and are asking for a Title V temporary septic system that can service 14 townhouses. Phase i-A will consist of 14 townhouses and will only have access to S. Main Street. They would like the board to condition their decision for 29, but they can only have access to South Main Street for these 14 townhouses. Mr. Lee asked why not access to Old Post Road? Mr. Shelmerdine stated it is much more expensive. Mr. Lee asked why not just go build it. Mr. Shelmerdine stated that is not part of the financing for this. Mr. Wernick asked why grant a permit for 29 townhouses when you are only building 14? Mr. Shelmerdine stated because they are financing 29, but only building 14. Mr. Lee again asked why not build the roadway and Mr. Shelmerdine stated it was too expensive. Mr. Wernick asked why not permit 14 townhouses and Mr. Shelmerdine stated they really need 14, but asking for 29. Mr. Lee stated he understands what they want, but feels they should build out the roadway.
Carl Cush, representing Ardis Hare: asked if the people will come out through the access road. Mr. Shelmerdine the 14 townhouses will until the road gets built. There is an April 1st payment due to the town. Therefore, they can’t build 29 units now.
Mr. Lee asked when the 120 days runs out for the ZBA on this? He is not sure if it is 120 days from filing.
Louise Patane, S. Main Street: asked why they can’t use Old Post R oad. Mr. Lee stated there is a difference between non-construction traffic. Mr. Shelmerdine stated they never held the board to 120 days.
Brian Florek, 147 Old Post Road: heard the cranberry bogs were originally filled in. Mr. Shelmerdine stated they can’t change it. Once it becomes wetlands, they can’t take it back. They are asking for 14 units and they are asking for temporary access. They can’t do the remaining 15.
Mr. Lee asked if their payment to the town on April 1st is contingent on receiving a permit from the ZBA? Mr. Shelmerdine stated no. Mr. Lee stated he would like a copy of the MOU. Mr. Shelmerdine stated they need to show that 14 townhouses will not impact traffic. He knows this is difficult for the abutters. Mr. Lee stated that the town has approved this; now, it is up to the ZBA to approve this. He would like Mr. Bobrowski to come in to give us a primer on 40R. Mr. Shelmerdine doesn’t think there is anything wrong with doing things this way. Mr. Lee stated there are people in this room who think there is. He stated that they are not doing this because they are good guys. There is a benefit for their project to get approved. Mr. Shelmerdiine stated they are not into this for that. They are into it for a middle ground. What do lights and ball fields have to do with this? If this subzone C was approved by town meeting, they would need to need to repair sidewalks on Laurel and Mitchell Streets for $125,000. There will be a whole bunch of mitigations by Sharon Commons for traffic issues.
Brian Florek, 147 Old Post Road: where is the sewage treatment? Mr. Shelmerdine stated in the back. Mr. Moreno stated it will be to the south of the cul-de-sac on the knoll where the Cummings house was. Mr. Lee stated it will be pumped up and Mr. Moreno stated yes. Mr. Florek asked who will own it and Mr. Shelmerdine stated all of them. It will be co-owned by 29 townhouses and 39 apartments. There will be co-owned via condo coduments. They are going to do three ANR’s to split this up. The town will not own it. Mr. Florek asked if there is a failure, will the town get hooked into it? Mr. Shelmerdine stated any septic system may fail. There are management contracts, building requirements, alarm systems. There may be a time when the local authority needs to come in. The town will have a right to come in and take action if necessary. The charges will go against the condo owners and rental units.
Fred Jones, 661 S. Main Street: will there be a person on site? Mr. Moreno stated yes, but not 24 hours a day. This will be conditioned by the Board of Selectmen. Mr. Shelmerdine stated the person will not live there, but someone will be there five days a week. Mr. Jones asked where are the leaching fields for the first 14 townhouses? Mr. Shelmerdine pointed out the systems and the reserves. Jesse stated there are two primaries and two reserves and they will follow all Title V requirements. Mr. Shelmerdine stated they will do a phasing plan. Mr. McCarville asked if they will revegetate when done and Mr. Shelmerdine stated yes. Mr. Jones is concerned that any break out will end up in his yard. Mr. Shelmerdine stated that EarthTec is doing a peer review as requested by the Board of Selectmen. They have been there twice informally at a public meeting, but not a public hearing. Mr. Shelmerdine stated the next meeting on March 9th is a public hearing and notice went out today. They had questions on the MOU and phasing, but nothing has been decided yet.
Mr. Jones asked if they are going to talk about the hammerhead turn around which is right on his property. He requested a 6’ berm. Mr. Shelmerdine stated yes with landscaping on top of that. They have no problem with that. Mr. Jones stated he has an issue with two of the townhouses. Mr. Shelmerdine stated that 40R was drafted to be a self-contained bylaw. Therefore, other sections of the bylaw don’t apply. Ken Caputo had some thought to deal with the hammerhead. Mr. Lee stated that Mr. Jones is talking about the proximity of the two townhouses next to his house.
Mr. Shelmerdine stated that minimum zoning is is 20 units per acre. Mr. Lee stated they created the zoning district. Mr. Shelmerdine statd it is not a minimum as that is what is allowed. Jesse Moreno stated they needed 12 units per acre. Mr. Shelmerdine stated that things were changed as recommended by Don Schmidt of DHCD. Mr. Lee stated this is what town meeting approved and this is what is before the Zoning Board. Jesse Moreno stated that with all the density, you need to look at all the land that is not built on. Mr. Lee stated because you can’t build on it, it is wetlands. Mr. Moreno stated that doesn’t apply. Mr. Lee stated Unit 25 is right on the buffer zone. Are you saying you can build into the buffer zone? Mr. Moreno stated yes because the line was created by the applicant. Mr. Shelmerdine agreed. The density is set so let’s make as many people happy as possible.
Mr. Lee stated the site is constrained because of the way you set it up. To build in the vegetated buffer would give the neighbors some relief. Mr. Shelmerdine stated that Conservation has to approve that.
Mr. Houston handed out a letter dated February 25, 2009 regarding scope. He stated that the applicant needs to submit these changes to the board as discussed in this letter. Mr. Lee asked if they will submit all these scopes? Mr. Houston stated that if the board adopts this, they will be required to do so. This project was included (168 units) in the EIR along with the mall.
Mr. Lee asked the applicant how long it will take for them to get a curb cut. Mr. Shelmerdine stated it is a 30-day process or a condition of approval. Mr. McCarville stated he thinks it takes a while. Mr. Shelmerdine stated there is already a pigeon hole with the State for this project. Also, curb cut permits can either be simple or complex. They have to show that traffic is not unsafe at this location. This comes right out of Section 4900 of the bylaw.
Mr. Houston stated they are asking them to evaluate an alternative access. They want the board to consider if this is the best option as presented. The traffic will change the quality of S. Main Street. There will be a more urban feel to that street than there is now. Mr. Lee asked if we want vehicles traveling through a residential area? Mr. Houston stated it is a trade off. Mr. McCarville stated that safety is a concern. He has met with Ardis Hare three times. They tried to buy this property, but she doesn’t want to sell. Mr. Lee stated we don’t want to send traffic through a highly populated area.
Mr. Wernick moved to adopt the letter of February 25 authorizing PSC to do the scope. This is what Tom Houston will be reviewing on this project. All peer review costs will be paid by the applicant. Motion seconded by Mr. Ruskin and voted 4-0-0.
Brian Florek, 147 Old Post Road: today they are shooting for 14 instead of 29, so doesn’t that change everything that went to the State? Mr. Lee stated no provided they have the wastewater system installed.
Louise Patane, 665 S. Main Street: they have revised plans and a request to Old Post R oad Corporation to meet some of their needs. W hat will happen now? Mr. Lee stated this hearing will be continued. They will show different plans at the next meeting regarding the lofts, etc. and other changes. He would like Mr. Shelmerdine to coordinate with the neighbors. He would also like some of the buffer put in. Mr. Shelmerdine stated they would like to continue this hearing to March 25 and they would like to have another round of discussions with the neighbors.
Mr. Lee questioned the Sharon Commons project and Ms. Gobi who lives across the street. He stated anything they agree to needs to be finalized. We will not leave the hearing with any loose ends because of Ms. Gobi.
Ms. Patane stated there are some issues not explicit to any one abutter, but to the town. Will the ZBA be able to those on so they don’t have to worry about negotiating this. Mr. Lee stated they can discuss any issues they feel are important. We will get into traffic and road layout at the next hearing. You can discuss anything you want.
Mr. McCarville stated on the scope regarding traffic, do they have to take Brickstone traffic into consideration? Mr. Houston stated that is already done. Mr. Ruskin asked Ms. Patane to bring any issues to the next meeting that she thinks apply. Mr. Shelmerdine stated it will be approved with pages of conditions.
Susie Walsh, 680 S. Main Street: they are concerned with the traffic, lighting and other things along that roadway. All are in agreement that they would like to see that road not exist. That road will cause problems to them as people will be cutting through both ways. Mr. Wernick stated it will be blocked off. We didn’t approve that. Ms. Walsh stated if it is open for a while, once it is there, it could be used. It will be a part of everything. If it has to be there for construction, they would like it removed after construction and then bring S. Main Street back to its original state. Mr. Shelmerdine stated that one side will be blocked off for emergency access. The MOU allows temporary access.
Ed McSweeney asked if we need to go to the State for an extension of time? Mr. Shelmerdine stated they signed an extension of time. Mr. Houston stated that 120 days is not automatic. It is contingent upon a complete application before the board. Mr. Lee stated we still have not received plans.
There were no further questions or comments. Mr. Lee continued this hearing to March 25, 2009 at 8:00 P.M.
Respectfully submitted,
Minutes accepted 4/22/09