SHARON ZONING BOARD OF APPEALS MINUTES OF APRIL 15, 2009
A special meeting of the Town of Sharon Zoning Board of Appeals was held on Wednesday, April 15, 2009 at 8:00 P.M. in the Lower Level of the Town Office Building. The following members were present: John Lee, Chairman; Kevin McCarville, Secretary; Seth Ruskin, Larry Okstein, Lee Wernick.
Mr. Lee opened the meeting at 8:06 p.m.
Mr. Lee stated that the application before the board is Sharon Residences, Case No. 1632. He stated that the clock started when this application was filed. The ZBA has 120 days to file a decision with town clerk unless the applicant wants to grants them an extension of time. The board would like to move this process along as the 120 day time frame runs out tomorrow. The board would like to make a decision that benefits the town, the neighbors and the developer.
Mr. Lee stated that the only issue we have at this point in time is the issue of access. He asked Tom Houston to speak to that issue.
Mr. Houston stated the board has two draft decisions before them tonight. The difference between the two decisions is that Decision #2 is an absolute prohibition of access to South Main Street from the project site. There was a question of when the access road via Old Post Road would be constructed as the principal access from the site. Decision #1 provides for a 24-month period during which that segment of Old Post Road would be constructed. There would be a security posted that would allow the town to build this out if the applicant can’t.
Decision #2 states that Old Post Road must be built and completed before any Certificate of Occupancy is issued for any building. It also states that there will be no emergency road built. It would be required that this area be graded and planted to preclude access.
Mr. Ruskin asked Mr. Houston for some clarification. What would we have for a guarantee? Mr. Houston stated there would be a surety that could be called by the town. Mr. Lee asked if it would be a Tripartite Agreement. Mr. Houston stated it echoes the Subdivision Control Law - a bond, cash or a Tripartite Agreement.
Mr. Lee stated that Dick Gelerman didn’t want to do a bond, but was leaning toward a tripartite agreement. He asked if the revegetation bond was a surety bond. Mr. Shelmerdine stated yes. This is a commercial site, so that is what they did. They would be willing to do a tripartite agreement here. He stated that with a tripartite agreement, 1) the bank takes a first mortgage on the property; 2) the town sets bond estimate figure; 3) the developer, the bank and the town all sign the tripartite. The only way money can be released is if the board authorizes a release of funds. If the board makes a determination that the developer has violated the terms of the tripartite agreement, the bank will pay to finish.
Regarding the access issue, Mr. Shelmerdine stated the applicant has entered into a Memorandum of Understanding with the Board of Selectmen that requires their access from South Main Street be one of two possible choices. Mr. Lee stated he talked to Dick Gelerman about this and he was told that the ZBA is not held to the MOU or any other commitments that the Board of Selectmen have given.
Mr. Shelmerdine stated that the Board of Selectmen did review the traffic issues which included the 168 residential units. Mr. Lee stated that the Board of Selectmen have not dealt with traffic issues on this road to the extent that the Zoning Board has. Mr. Shelmerdine stated there are two traffic consultants present tonight. Further, the MOU provided for potential access from the site for emergency and temporary access. It was originally a “temporary construction access”, but “construction” was dropped. He feels they need to honor their commitment to the Board of Selectmen through the MOU. Mr. McCarville questioned the April 1, 2009 payment of $200,000 to the town. Mr. Shelmerdine stated that prior to April 1st, they asked for an extension, but no formal action has been taken yet. This is their issue, not a ZBA issue. They need to be able to finance this, but can’t do so without building permits. Mr. Lee stated he did talk to Greg Meister and he said they are okay with the layout at this point. Mr. Shelmerdine stated they have a cost estimate of $1.5 million to build out Old Post Road. They would like temporary access as provided in the MOU. Town Counsel had concluded that 24 months would be in the realm of reasonable and not inconsistent with the MOU. That obligation would be bound by the security.
Jesse Moreno and Bob Shelmerdine met with the fire chief last week. They discussed the site. The fire chief suggested that under no circumstances would he not consider having an emergency access. Mr. Lee asked if they have a letter from the fire chief and Mr. Shelmerdine stated no. The fire chief had stated that unless the ZBA requests one, he won’t write one. Mr. Shelmerdine stated he will put together a letter of what took place with the fire chief, but he has nothing in writing from him yet.
Mr. Shelmerdine stated that the fire chief stated that a plastic chain is the best protection as they can push against it and it will break. They also talked about many other issues. He feels the board needs to follow the fire chief’s recommendations. Because this road is very tough to build, they are talking over 6 figures and it will be torn up. The money will be wasted.
Mr. Shelmerdine stated they have an opinion from town counsel that a security put in place would protect the town.
Michael Intoccia stated that the temporary road would be used for 14 units maximum. Mr. Shelmerdine stated the commercial site will not generate traffic until it is built. Mr. Intoccia stated the offsite improvements have to be completed by the first 150’. He is willing to make the gate opaque with slats so there will be no visibility. Even there is another decision without emergency access, they feel they need it and the fire chief agrees. He doesn’t think the ZBA can deny anyone who has legal access the ability to build a road. Mr. Intoccia further stated that for them to use a temporary access was part of the MOU deal with the town, therefore he doesn’t understand the problem. They are going to building Old Post Road. For them to go forward, it all comes down to financing. He needs to go forward as soon as possible. The Board of Selectmen let him go forward with 14 units. He is not trying to get 29 units, but would like this to go forward as a temporary road for 14 units. It might only be used for six months or ten month. What is he doing wrong?
Mr. Lee stated: Personally, nothing. It has to do with traffic comments heard throughout the entire process. There is already an issue there now from Shaw’s. Mr. Intoccia asked who says it’s an issue? We pay people to do traffic reports. They say it is not an issue for a temporary use for 14 units. He already said he would bond the road to ensure it gets built. He has done everything the ZBA wants him to do. If there was another way, he would do it. He gave whatever they wanted to the neighbors: berms, fences, whatever. He can’t go forward with everything he promised the town unless he can go forward with these 14 units. If the ZBA says no, he can’t go forward with what is in the MOU. It will be a financial burden. He has a lot of money in this project and need to go forward in thirty days. He doesn’t want to lose he letter of approval. He promised the town would have $200,000 for lights.
Ken Caputo, Coler & Colantonio: there is a proposed evaluation report in the submittal. Section 3 is a traffic analysis which was performed for the full 29 unit development. When they are talking about a curb cut, they will address public convenience and safety. He will explain what that temporary access means. In the case of 14 units, they have done a trip generation and assignment compared to 29 units. There is a specific land use code for town houses.
Mr. Ruskin asked how many cars for 14 units? Mr. Caputo there could be 28 cars. The report will say about 116 trips per day for 29 units. Mr. McCarville stated there is no such access on that side of the road and now you are creating one and you will be introducing construction equipment and large vehicles. W hat will that be like? Mr. Caputo stated the same as it is now. Mr. Shelmerdine stated a condition in the decision required that Old Post Road be used by all construction vehicles for access. It is a dirt road, but it can be used. All the tree equipment used the dirt road. Mr. Caputo stated the trip generation will be about 116 trips per for 29 units. For 14 units, it will be about half of that. In the highest ours it will be about ten trips or less. There will not be an added delay on South Main Street and there will be no added inconvenience to the cars on South Main Street. Regarding safety, they have done a sight distance analysis. Coming in and going out from a safety perspective, there is ample line of sight from both areas. This is a safer location from a safety standpoint. This location also needs to be submitted to Mass Highway for approval. He doesn’t think that Mass Highway will have any issues. They are willing to do that prior to the start of construction. Mr. Lee stated he feels they defer to a local board. Mr. Caputo says Mass Highway doesn’t have the right to say no. They will just require it be built to safety standards. If it were Sharon Commons, they would have a problem with this.
Mr. Lee asked in their traffic impact evaluation, what is the actual speed out there? Mr. Caputo stated it is the 85 percentile and speed was 40-45 mph. He stated that 15% go faster and 85% go 40-45 mph. Mr. Lee stated that is not much higher than the posted speed limit.
Regarding the traffic at this location, Mr. Houston stated he believes the traffic volume numbers as presented are correct. He feels the townhouses will generate less than ten trips per day. The construction access will be over the graveled Old Post Road and feels that is a positive issue. The safety issue would be a sight distance issue. The supplemental report by Coler & Colantonis would measure the 85 percentile and this location would meet that percentile in terms of stopping and sight distances.
Mr. Lee questioned queuing issues as Sharon Woods is right there. Ideally, would you have intersections offset from each other or across from each other? Mr. Houston stated across from each other. Also queuing issues come with signalization. They will have a substantial queue when the signals are constructed. There will be a new traffic signal at Gavin Pond Road, Wolomolopoag, off ramps from Route 95, and Old Post Road to name a few. Mr. McCarville asked if that is contingent on this mall being built and Mr. Houston stated yes.
Mr. Ruskin asked if Sharon Commons is delayed more than two years, do they have to come back to us to decide what will be built? Mr. Houston stated they will be allowed to come back and build a lower level of roadway. You could end up with a conventional two-lane highway. Mr. Shelmerdine stated that review would be through the ZBA. Mr. McCarville asked how long to build the 14 units? Mr. Intoccia stated December. Mr. Okstein asked why they want the access road for two years then. Mr. Intoccia stated it will take two years to build out the other roadway. They need to build bridges with culverts. Also, all utilities will be brought down S. Main Street to Old Post Road. It could be 18 months if the board wishes. Mr. Okstein stated he feels this is unsafe because a fire truck would have to all the way around. Mr. Lee stated that if this is not safe, what about the remainder of buildings that will be located way out? Mr. Intoccia stated the fire chief always wants two exits. He won’t cut the trees in the access road area so this can’t be accessed unless it is an emergency vehicle. Mr. Caputo stated they will put up a barrier.
Beth Green, Huckleberry Lane: she would like the neighbors to have a site managers name and phone number as an emergency contact. Mr. Shelmerdine stated no problem.
Brian Florek, 147 Old Post Road: regarding the gates at the end of Laurel Road, they are down right now and therefore they are not secured. Mr. Lee stated that is a good point. If you see that, just give the applicant a call. Mr. Shelmerdine stated Brian Sullivan, site manager, took care of some trees that were down and some gates that were down. He will notify Brian of this problem.
Susie Walsh, 680 S. Main Street: doesn’t agree that there is no queuing on South Main Street. People are always trying to turn left and oncoming traffic from Shaw’s causes frequent backup of traffic. The minimum think in her mind is that you have to think about widening the road there and making it two lanes as there are already problems there. Mr. Houston stated he doesn’t think queuing precludes either means of access. Mr. Okstein asked if there is a way to prevent cars from going around each other. Mr. Houston stated it is generally desirable to widen the roads to allow the vehicles to continue moving which would facilitate traffic to keep moving.
Louise Patane, 665 S. Main Street: regardless of left turns, getting in and out of her driveway at the two commuter hours is hard now. The addition of 14 or 29 units will add to this. She asked when the study was done. Mr. Moreno stated it was done twice. Mr. Lee stated it was done as part of Sharon Commons. It was originally going to be all access through Old Post Road. Mr. Intoccia stated the MOU states they could use this temporary access. Mr. Lee stated when these projects were first discussed; they were told there would only be one entrance. Mr. Intoccia stated the $200,000 for lights were added after that and that is why he got an extension. Mr. Okstein asked why can’t this be “emergency access” only. Mr. Lee stated he has a safety concern with access on to South Main Street. We have heard that there will be a problem to allow this access road to go forward. Mr. Intoccia stated the traffic consultants have said this is the way to go. Let them tell him that he is doing this wrong. Mr. Shelmerdine stated there is testimony they do not challenge safety of public issues. He knows that findings can always be challenged. For the record, if an appeal were taken, they have the MOU and adequate testimony by both the peer review consultant and the traffic consultant that there are no issues for 14 units. He doesn’t know how the board can deny this.
Mr. Lee stated they have frontage on Old Post Road. Mr. Shelmerdine stated that is not built, so there is no access. Mr. Lee stated that is why he asked the question earlier about an intersection across from another intersection. We were told this was a good design because it was going to line up with Shaw’s. Mr. Shelmerdine stated there is not an intersection there now. Mr. Caputo stated this is a better location. That MOU states there will be 20,000 vehicular trips a day. Mr. Lee stated the context was there would be one access only, now they are getting something different.
Mr. Intoccia stated he went to town meeting and they are allowing this. He feels that Mr. Lee doesn’t want him to do this personally. There are many excuses. He will make it whatever the board wants. He is only trying to do 14 units. Mr. Intoccia asked why would I do this. Why would I meet with the neighbors and spend $165,000? What else can I do? He went to town meeting and asked to do a temporary access and they voted to let it go. Mr. Shelmerdine stated that what is in front of you is an application for site plan review. The context is not part of the application.
Mr. McCarville stated he feels better that the construction vehicles will not be on South Main Street. In this economy, this town has no guarantee this mall will be built. Mr. Intoccia stated not today, but within two or three years. Mr. McCarville stated we don’t know when it will be built. Mr. Intoccia stated he knows some things that you don’t. Mr. McCarville stated he doesn’t pretend to know. He asked if the developer and his attorney can give some guarantee to the town that they will put in a permanent road. Mr. Intoccia said he would bond before one person moves in. Mr. Lee asked where that is in the decision. Mr. Houston stated Condition #11.
Mr. Shelmerdine stated that everything ceases on site if they have 6 townhouses constructed in 24 months with 8 more to go and the Old Post Road road is not built in 24 months. You can withhold any certificate of occupancy and the town can take the money and build the roadway themselves. The decision also says that any vehicle that has six wheels or more can’t come from the center of town.
Mr. Intoccia stated he will bond this before one unit goes in. He will then do the road within 24 months. Mr. Lee stated the estimate has changed since the last meeting. Mr. Intoccia stated he only needs an 18’ wide roadway. Mr. Lee asked why they don’t do that. Mr. Intoccia stated there is a reason. He needs a shovel in the ground by June to get the stimulus money.
Amanda Gunness, 668 S. Main Street: why can’t they just use the road and forget about the emergency road? Mr. Intoccia stated there will be a safety problem. Mr. Shelmerdine asked how they would phase a windy road when they have two bridges. Mr. Lee stated he understands, but his issue is that it goes back to the fact that the mall was going to be built and then the condos. Mr. Intoccia stated he knows that. Ms. Gunness stated that at the last meeting when they talked about the temporary road, Mr. Intoccia said he would berm this and then plant it. Mr. Intoccia stated the fire chief want it this way. Ms. G unness asked why he didn’t put it in writing? Mr. Shelmerdine stated because he wasn’t asked by the ZBA.
Mr. Okstein stated they only need 12 months? Mr. Intoccia stated no they need 24 months because they are waiting for stimulus money.
Mr. Lee asked if we could find ourselves a year from now that you are putting in a two-lane road. Then what?
Mr. McCarville stated say the mall takes 36-48 months. In the interim, you don’t want to do a 4-lane road because of the cost, so you want to do a 2-lane. Mr. Intoccia stated if they are not doing the mall in two years, they will be back before the board to see what they can do. Mr. Lee asked if the people of Sharon could end up with nothing but a residential project out here. We are saying that because Sharon Commons is a residential project. Mr. Intoccia stated it is zoned for that mall. He would have to go back to town meeting to change this. Mr. McCarville asked what if you sold it. Mr. Intoccia stated then they would have to come back. Mr. Lee stated unless they wanted to do a life style center.
Beth Green 14 Huckleberry Lane: What about the houses on Laurel Road? Mr. Shelmerdine stated they have nothing on the warrant. Ms. Green stated she thought it would be there.
Ed McSweeney, 68 S. Main Street: asked if they could explain the land behind the lower project. Mr. Shelmerdine stated it is 16.5 acre parcel that has already been deeded to the town for passive recreation use.
Mr. Shelmerdine stated that the MOU states there can be 29 units. Mr. McSweeney asked if it can be larger and Mr. Shelmerdine stated no. Mr. McSweeney asked the time frame on the second phase. He stated he thought it was three years for them to get $3,000/unit. Mr. Lee stated that is correct.
Mr. Intoccia stated they have already started to design the sewer treatment plant for the residences and the mall has already been approved. Mr. McSweeney doesn’t want the town to lose the money. Mr. Ruskin stated that is not our issue.
Susie Walsh, 680 S. Main Street: Bob Shelmerdine did come and negotiate at their home. They are going to come back and chat again. There will be no mitigation on her side of the street. They have only said they are going to come back and talk at a later time. What about the increase in traffic? They were supposed to take care of fencing on her side of the street. Mr. Lee stated that is part of the mall. Ms. Walsh stated that if this road goes in, it will just be left there. Mr. Lee agrees. Mr. Shelmerdine stated that the traffic generated by 14 units or 29 units will be less than the commercial site. Mr. Caputo stated they have design plans already. Mr. Okstein said let’s say the mall is delayed. Why can’t we have the other side of the street contingent on this road getting access.
Mr. Lee stated the issue before the board tonight is the access road. A decision is due tomorrow. How do the ZBA members feel about this access onto South Main Street? Or do we want to limit the access to Old Post Road? He asked the board for their opinions on this issue.
Lee Wernick stated he is willing to allow the shorter term access onto South Main Street. He would like it cut to twelve months rather than 24 months. He can’t build the other road as people will continually drive on this.
Seth Ruskin stated he doesn’t think 14 homes will impact anything. It seems reasonable to him. Mr. Okstein stated he will rely on the traffic studies and agrees with Mr. Ruskin. He can see the problems coming up, but wouldn’t deny the access to South Main Street.
Mr. McCarville stated he would have been against the access road to S. Main Street if heavy construction vehicles were allowed to use it. He agrees with the fact that 14 units would be diminutive. He wants to lock in Mr. Intoccia that at one point it will be stopped regardless of what happens with the mall.
Mr. Lee stated on a project like this, if we allow temporary access, we have to be careful it doesn’t become permanent access. The only way to guarantee that is not give temporary access. This whole project was conceived not requiring access out to South Main Street, but only out to Old Post Road. This is not a good idea. What is the long term effect of this? He feels the best way for the town and residents is to have access by way of Old Post Road only.
Mr. Wernick asked if the bond should be higher. Mr. Lee stated the issue is that this town is finding themselves in situations where they think they are in one position but are getting another one. It is about property, not personnel.
Mr. Intoccia stated it is impossible to do what John Lee wants.
Mr. Ruskin state he doesn’t want money tied into a zoning decision. Mr. Shelmerdine asked if he means the MOU? Mr. Ruskin stated yes. It sounds like the ZBA is charging fees. Mr. Ruskin stated that if it went to the neighbors, he would be fine with that.
Mr. Lee stated that there are two draft decisions before the board tonight. Draft #1 as prepared by Mr. Houston is with two roads, a temporary access road from the site out to South Main Street and a permanent access road by way of Old Post Road. Draft #2 is with only one permanent access road by way of Old Post Road and no temporary access road out to South Main Street.
Mr. Lee asked the board for a consensus on the two decisions: Mr. Okstein, Mr. Ruskin and Mr. Wernick stated they are in favor of Decision #1 or two access roads, a permanent and a temporary. Mr. Lee and Mr. McCarville were in favor of Decision #2 or only one permanent access road to Old Post Road.
Mr. Lee stated the permanent regular board members will be voting: Mr. Lee, Mr. McCarville, Mr. Wernick.
Mr. Lee moved to approve Case No. 1632 as per Draft Decision #2 dated April 15, 2009 and as prepared by Tom Houston containing 23 pages and showing 73 conditions and no temporary access to South Main Street. Motion seconded by Mr. Wernick and voted 2-1-0 (Lee, McCarville in the affirmative; Wernick in the negative). Motion carried.
Speaking to Mr. Lee, Mr. Intoccia stated he can’t build what was voted. We will go to court. He stated that Mr. Lee has been against this since day one. It is not right what you just did. You are not a straight shooter. It is not right what you just did. You went against town counsel, our consultants and your consultants. You didn’t listen to them. You did it wrong. You shouldn’t have been able to vote. You didn’t give me a road.
Mr. Lee stated that town counsel said we don’t have to follow the MOU.
It was moved, seconded and voted to adjourn. The meeting adjourned at 10:20 p.m.
Respectfully submitted,
Minutes accepted 4/22/09