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HomeMy WebLinkAbout1960-05-091 PLANNING BOARD MEETING May 9, 1960 A regular meeting of the Lexington Planning Board was held in its office, Town Office Buildings on Monday, May 9'; 1960 at 7:30 p.m. Present were Chairman Burnell, Members Grindle and Soules Plan- ning Director Snows and the secretary, Mrs. Baker. From 7:30 to 7:50 p.m. Mr. Stevens met with the Board. He first discussed matters relating to the Glen Estates subdivision plan which on March 29s 1960 had been approved by the Planning Board subject to the provisions of a covenant executed by the sub- dividers Avadanian. Mr. Stevens stated that the Way - mint Realty Trust, having purchased all the land within said subdivision and desiring to develop cer- tain portions of it, had requested him to prepare an instrument wherein the Planning Board would release certain lots on said subdivision plan from the afore- said covenant and would accept in substitution there- for an agreement and a surety company bond securing the same provided said Trust would install and con- struct the ways and services to serve said lots in- cluding the construction of a drain shown on the plan. Further stating that he had conferred with the Plan- ning Director and the Superintendent of Public Works in regard to the matter, Mr. Stevens presented for the Board's consideration an agreement and a bonds both executed on May 91 1960s and a third instrument he had drafted entitled "Partial Release of Covenant." GLEN ESTATES AVADANTAN WAYMINT REALTY TRUST All matters appearing to be in orders upon motion duly made and seconded, it was unanimously VOTED: in consideration of the agreement and its accompanying bond, both dated May 9, 1960 and executed by Trustees of Waymint Realty Trust, the Lexington Planning Board hereby releases lots numbered 1, 2, 6, 7s $s 9s 14 and 15s and 21 through 29 inclusive, as shown on the sub- division plan entitled "Glen Estates Lexington, Mass."', dated November 4, 1959s from the pro- visions of a covenant dated March 21, 1960. After the Board had signed the release and an acknowl- edgement was taken by the Town Counsels the original of the partial release was kept by Mr. Stevens for recording in the Registry of Deeds. Discussed next with Mr. Stevens was Mr. Paul J. McCormack's letter of April 27, 1960 to the Plan- ning Board with reference to the possible acquisition -9-6o -2- Mr. Snow was asked to obtain an appraiser's opinion of what said portion was worth. It was de- cided also that when Mr. Burnell and Mr. Snow met with the Recreation Committee on May 12 that they would discuss the matter of acquisition with the Committee. of a portion of the Brun -McCormack land for public BRUN- recreational purposes. Mr. Stevens informed the McCORMACK Board that it should determine right away whether , LAND FOR or not it wished to acquire the portion of said RECREATION land for the reason that Messrs. McCormack and Brun PURPOSES were entitled to the Board's decision. In making VINE BROOK such a decision, Mr. Stevens said the Board would REALTY have to determine how much the land would cost the TRUST Town because the Board had reached an impasse with said men and would have to proceed with eminent domain proceedings in order to acquire the portion under consideration. . . Mr. Snow was asked to obtain an appraiser's opinion of what said portion was worth. It was de- cided also that when Mr. Burnell and Mr. Snow met with the Recreation Committee on May 12 that they would discuss the matter of acquisition with the Committee. The attention of the Board was called to Mr. Nickerson's letter of May 5, 1960 to Mr.Burnell with reference to the last paragraph of the Plan- ning Board's letter of April 29, 1960 to the Board of Appealsinregard to the suggestion that both Boards meet informally to discuss the Vine Brook Realty Trust's plans for said garden apartment dis- trict. Mr. Burnell was asked to arrange for such a ' meeting. Also discussed with Mr.Stevens was a Board WALTHAM ST. of Appeals April 29, 1960 letter, its attached copy GARDEN of a letter dated April 28, 1960 from Mr. Alfred P. APARTMENT Tropeano to Mr. Nickerson, Chairman of the Board of DISTRICT Appeals, and an accompanying colored photostat of a _ site plan, numbered SP -1 and dated 2-29-60. Mr. VINE BROOK Stevens stated that the Planning Board should con- REALTY sider Mr. Tropeano's letter an application for , TRUST approval of said plan and that the Board should write a report based on the plan. Along with the Board he noted that the plan was only a schematic drawing showing no detail and could not be approved because it did not give any distances, dimensions of side yards, or anything else. Taking these matters into considerations Mr. Snow was asked to draft for the Planning Board's considera- tion at its next meeting a final report to the Board of Appeals in regard to the submitted site plan. It was decided to make arrangements to meet with repre- sentatives of the Board of Appeals and the Vine Brook Realty Trust for the purpose of discussing various plans for the development of the Waltham Street garden apartment district. The attention of the Board was called to Mr. Nickerson's letter of May 5, 1960 to Mr.Burnell with reference to the last paragraph of the Plan- ning Board's letter of April 29, 1960 to the Board of Appealsinregard to the suggestion that both Boards meet informally to discuss the Vine Brook Realty Trust's plans for said garden apartment dis- trict. Mr. Burnell was asked to arrange for such a ' meeting. 5-9-60 -3- Mr. Snow distributed to the members of the Board a memorandum to which was attached acopy of CIVIL ' the American Society of Planning Officials Advisory DEFENSE Service Special peport entitled "The Role of the Planning Commission in Civil Defense" and dated Mr. Snow reported that after the adjournment of the Planning Board meeting the previous week he NATIONAL had been asked by the Selectmen to meet with them GUARD and give them a report of the Planning Board's ARMORY opinion of the Massachusetts National Guard armory PROPOSAL proposal. Mr. Burnell said that the Chairman of the Board of Selectmen had conveyed both the opinion of the Board and the Planning Board to representatives of the Massachusetts National Guard and that said representatives had arranged to meet with Mrs. Morey and himself to discuss the matter further, particu- larly sites where representatives of the Guard would like to locate an armory. Understanding that one of these sites was the Lexingtob Department of Public Works property, it was decided that Mr. Burnell would inform said representatives that the Planning Board was not in favor of locating an armory in either the center of town or in a residential district. Considered next were the minutes of the Board's April 25 and 29, 1960 meetings. Said minutes were MINUTES approved. The Board also considered the following Form A application for determination of Planning Board FORM A jurisdiction: ff60-30, submitted May 9, 1960 by Douglas J. Wacome for Wynwood Associates, Inc.; plan entitled "Plan of Land in Lexington, Mass.", scale: 1" = 401, dated May 2,1 960, Fred A. Joyce, surveyor. All matters appearing to be in order, upon motion duly made and seconded, it was unanimously VOTED: that the Lexington Planning Board determines that the plan accompanying Form A application #60-30 does not require approval, and that said plan be so endorsed. Mr. Snow reported that on May 6,1960 Wynwood OAK HILL Associates had submitted an application for approval ESTATES of a definitive subdivision plan entitled "Oak Hill SEC. 3 Estates, Section Three." It was decided to hold a - hearing on said application on Tuesday, May 31, 1960 WYNWOOD at 8:00 P.M. ASSOC. Mr. Snow distributed to the members of the Board a memorandum to which was attached acopy of CIVIL ' the American Society of Planning Officials Advisory DEFENSE Service Special peport entitled "The Role of the Planning Commission in Civil Defense" and dated 5-9-60 -4- October, 1950. He pointed out that in his opinion while the report was old nevertheless it sets forth , many ideas which might be considered by the Board with the view of determining its "area of responsi- bility" and in what way it might be of assistance to the Town's Department of Civil Defense. Mr. Snow reported that on May 17, 1960 he planned to meet Lexington's Director of Civil Defense and his deputies to explore this matter further. The following persons then met with the Board: REZONING Messrs. Berndt, Lipton and Stevens of the Battle PROPOSAL Green Inn, Mazeo of the Carriage House Restaurant, Finnerty and Weir of the Lexington Inn, and Ross of LIQUOR IN the 1775 House. Speaking for the group, Mr. Sidney RESTAURANTS Linton said that it was interested in trying to ob- tain permission to serve liquor in the establishments represented and wished information on procedures to follow in seeking this permission. He stated that his group understood that the proposal should first be brought before the Planning Board. Mr. Lipton asked if the group had to petition I for a variance of the Zoning B -T -law. It was pointed out that the matter was not one of a variance which From 8:25 to 9:05 p.m. Mr. Emilio Spagnuola HAWTHORNE of Esco Builders, Ine.and his attorney, Mr. Donald ACRES LAND E.,Sleeper, Jr. met with the Board to discuss the FOR PUBLIC possible acquisition by Lexington of the remainder RECREATION of said corporation's land in the Hawthorne Acres development. (See minutes of April 203, 1960 Plan- ESCO BURS. ning Board meeting.) It was established that $3500 was the difference between the corporation's offer for the land and that made by the Board. Mr. Sleeper said that his client wanted to compromise, if possible, and asked if there was a basis upon which there could be a mutual understanding. It was stated that the Board believed there was. Thereupon, Messrs. Sleeper and Spagnuola left the meeting in order that the Board might discuss the matter privately. It was decided that a decision of this nature should not be made with only three members of the ' Board present. It was decided also that another appraisal should be made, that the Executive Health Officer should be asked to make an examination of the land and that the matter should be discussed with the Town Counsel - all before negotiating further to acquire the Esco Builders► land. Accordingly, Messrs. Sleeper and Spagnuola were informed that the Board would. look into the land acquisition matter further and give them an answer within the next few weeks. The following persons then met with the Board: REZONING Messrs. Berndt, Lipton and Stevens of the Battle PROPOSAL Green Inn, Mazeo of the Carriage House Restaurant, Finnerty and Weir of the Lexington Inn, and Ross of LIQUOR IN the 1775 House. Speaking for the group, Mr. Sidney RESTAURANTS Linton said that it was interested in trying to ob- tain permission to serve liquor in the establishments represented and wished information on procedures to follow in seeking this permission. He stated that his group understood that the proposal should first be brought before the Planning Board. Mr. Lipton asked if the group had to petition I for a variance of the Zoning B -T -law. It was pointed out that the matter was not one of a variance which -9-6o ' would not be granted but one of amending said by- law. It was explained that three districts were In- volved --general business, local business, and garden apartment and hotel --and that amendments to the zoning by-law would have to be sought for each of these districts. The procedure for amending said by-law was then explained. In answer to the group's inquiry of which to do first, seek the vote of the townspeople to permit liquor to be served in Lexington or seek a zoning amendment, it was stated that the matter should first be placed on the ballot at the time of state-wide elections. -5- Mr. Lipton described how the serving of liquor was allowed in the town of Concord where he said there were four permits altogether. He then read to the Board a letter from the group's attorney, Mr. McLaughlin, who had made a thorough study of the matter. (See addendum,) To supplement this information Mr. Lipton said he would look into the Concord situation further and transmit additional data for the Planning Board's use. ' An expression of the Planning Board's opinion was sought in regard to serving liquor in restaurants, it being pointed out that the group did not wish to expend the money for publicity and to present the matter at a public, hearing if the Board would not be In favor of the proposal. The group was informed that prior to a public hearing the Planning Board could not commit itself either personally or as a Board, but that after a public hearing the Board would have to pre- pare an unprejudiced report based on the material pre- sented at a hearing. Considered next by the Board was a draft of a letter in reply to Mr. Antonio Busa's request in re- GREEN VALLEY and to the proposed Green Valley Sec. 6 subdivision. SEC. 6 See minutes of April 25, 1960 Planning Board meet- ing.) The Board apnroved the letter which was signed BUSA by the Chairman, (See addendum.) Mr. Snow reported that Mr. Nylander who was preparing a definitive plan for the Country Club COUNTRY Manor subdivision for Fred A. Joyce, surveyor, had CLUB MANOR found that there was an error on the preliminary - plan which had been prepared by Mr. Joyce and POND REALTY ' approved by the Planning Board. (See minutes of TRUST June 8, 1059 Planning Board meeting.) Mr.Snow pointed out that some of the lots shown fronting on 5-9-60 �6- Garfield Street were incorrectly located and that ' there was In existence on said lots a house which was located where it was proposed to extend at a later date the way marked "D Street." There was shown to the Board for its informal opinion a print of a plan entitled "Proposed Change in Lotting Country Club Manor," dated May 5, 1960, and prepared by Miller and Nylander, said plan showing said D Street as a permanent dead-end way about 460 feet long. Mr. Snow said he had discussed the plan with the Town Engineer and that they both thought the pro- posal would be an improvement of the preliminary plan. The Board gave its informal approval of the May 5 plan and asked Mr. Snow to so notify Mr. Nylander. Likewise considered by the Board was the PINE RIDGE application of the Whiter and Greener Trusts for WHITER & tentative approval of the proposed subdivision of the GREENER former McDevitt property located at the intersection TRUSTS of Burlington and Grove Streets and extending in part to Route 128. There was exhibited an advance pre- liminary plan for the widening and relocation of Route 128, said plan prepared by the State Department of Public Works indicating a taking of part of the former McDevitt land for a roadside park in addition to that for widening the regular right-of-way. In ' view of the State.D.P.W, proposal, upon motion duly made and seconded, it was unanimously VOTED: that the preliminary subdivision plan en- titled "(Preliminary) Plan of Land in Lexing- ton, Mass. Pine Ridge," dated September 32 19591 which was submitted to the B6ard on April ll, 1960p be and hereby is disapproved for the reason that it is understood that the State Department of Public Works proposes to make within the near future land takings in the area included within the subdivision for the widening and relocation of Route 128, necessitating the redesign of the road system In said subdivision. At 10:35 p.m. the Planning Board adjourned MINUTE MAN its meeting to attend the Board of Selectmen's meet - NATIONAL ing to discuss at their request a letter dated April HISTORIC 29, 1960 from the Regional Director, Region Five, of PARK the National Park Service transmitting to the Select- men a preliminary boundary plan of the proposed Minute Man National Historic Park. (See minutes of the Board of Selectmen.) Levi G. Burnell, Chairman 5-9-60 ADDENDUM ' April 13, 1960 Mr. Herbert Stevens c/o Battle Green Motor Inn 1720 Massachusetts Ave. Lexington, Mass. In Re: Lexington Liquor Licenses Dear Steve: -7- I have made a thorough study of the zoning laws of this state. As a result, I see an excellent opportunity to set things up in Lexington on a proper basis. At the outset, let me dismiss the matter of special pious zoning, since it will not get by. This is so because the statute requires that zoning ordinances shall be the same for zones, districts or streets having substantially the same character, and our Court has said that to single out one lot and impose restrictions on it that are less burden- some than those on the remaining portion is illegal spot zoning. Many people have tried to get around that reason- ing without success. Thus, in a Falmouth case in 1943, a part of a residence zone was changed to business in which the manufacture of ice would be permitted. The Court rules the change illegal because there was no difference in the area from the rest of the district that remained residen- tial. In another case in 1041, concerning New Bedford, an addi- tional zoning district was established called a "funeral home" district. A large area was included, but there was only one person in the area who would use his property for a funeral home. The Supreme Court held that to be spot zoning. I could recite many other cases to the same effect, but I can assure you that any zoning change based on seating capacity or other factors is not going to be upheld. If other people in the same neighborhood have establishments in a zone that is no different from yours and are barred by trickery, they will overturn your zoning law. The correct way to handle this matter is found in the case of Burnham v. Gloucester, 333 Mass. 114. In that case the zoning law did not permit motels. In 1953 the zoning law was changed so as to permit motels in any district. How- ever, there was a restriction that a motel could not be built or operated until a permit was obtained from the Board of Appeals. On application for such a permit, notice had to be given and a public hearing held. The zoning or- 5 -Q -6o dinance further provided that no permit for a motel should be granted by the Board of Appeals without considering the effects upon the neighborhood and the city at large. Burn- ham obtained a permit for a motel. People residing nearby took the case to the Supreme Court, after the Board of Appeals granted the permit. The Supreme Court upheld the granting of the permit. The Court said that the new zoning law was not spot zoning, but gives specific authority to conduct a certain operation within a zone already estab- lished. In Lexington if all alcoholic licenses are voted by the town, the committee would first have the protection of the Selectmen in the exercise of their discretion in granting licenses. The zoning law could also be amended like the Gloucester zoning law to provide for the sale of liquor after a permit had been granted by the Board of Appeals. That gives the town a second line of defense, since I assume that ,your Board of Appeals is different from the Selectmen. If I am wrong, the zoning ordinance could fur- ther provide that the matter first require an affirmative vote of the Planning Board. With those opportunities of restriction, the local authorities could effectively keep the town from having barrooms. In the case of Marchesi v. Winchester, 312 Mass. 28, we have an excellent example of the way the Court will uphold the judgment of the local authorities. In that case, the zoning law permitted bowling alleys in a business district. The plaintiff filed for a license to conduct a bowling alley in a business district, but persons residing nearby objected to the noise that would result. The Licensing Board refused the license. The Supreme Court said that they had the right to exercise their discretion, based upon considerations of the suitability of the place. The mere fact that the zoning law permitted it, did not mean that the applicant was entitled to a license. It seems to me that the Gloucester case and the Winchester case will provide ample protection for the Town of Lexing- ton to permit Lexington to have liquor without having any abuses. Mr. Antonio Busa k8 Lowell Street Lexington 73, Mass. Dear Mr. Buss: Sincerely yours, (Charles S.MeLaughlin) May lo, 1960 Re: Green Valleys Sec. 6 n 11 5-9-6o .9 - For your information there is enclosed herewith a portion of the print of the Board's study plan referred to above. Sincerely yours, (Signed) Levi G. Burnell, Chairman 1 The Planning Board regrets that because of its heavy schedule, it has been unable previously to give attention to your request of March 7, 1960 at which time you met wtth the Board. However, recently careful consideration has been given to your request for the Board's informal opinion in regard to a proposed subdivision to be named Green Valley, Section 6 extending Lillian Road in a south- westerly direction and substituting a temporary turning circle for a permanent turn -around. It was decided that the Board would approve an extension of Lillian Road only with a permanent turn -around as set forth under Sec. IV.A.4. of Lexington's Subdivision Rules and Reg- ulations. It was further decided that the Board would be willing to modify the proposed Section 6 plan by eliminating the permanent turnaround, if, within two ,years of the date of approval of this definitive subdivision plan showing said extension and permanent turn -around, you acquired the property understood to be owned by Russo and fronting on Circle Road and submitted to the Planning Board for approval a second definitive subdivision plan showing the extension of Lillian Road to Circle Road, substantially Ina ccordance with said Board's study plan entitled "Suggested Residen- tial Development of a Portion of Land of Antonio Busa," and dated February 29, 1956. It was likewise agreed that should you be interested in acquiring the Russo property and extending Lillian Road to Circle Road and wish to have sufficient time to make such arrangements, the Planning Board wauld be willing to modify said rules by allowing two years for the completion of all required improvements in the Section 6 subdivision as set forth in paragraph 6 of the application for approval of a definitive plan, Form C. For your information there is enclosed herewith a portion of the print of the Board's study plan referred to above. Sincerely yours, (Signed) Levi G. Burnell, Chairman 1