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HomeMy WebLinkAbout1984-10-15PLANNING BOARD MINUTES MEETING OF OCTOBER 15, 1984 The meeting of the Lexington Planning Board, held in Room G-15, Town Offices, was called to order at 7:41 p.m., by the Chairman Mrs. Smith, with members Cripps, Flemings, Sorensen, Uhrig and Planning Director Bowyer present. SUBDIVISION OF LAND 201. Farmington Rise, off Bow Street; Acceptance of Covenant: On the motion of Mr. Sorensen, seconded by Mr. Cripps, it was voted unanimously to approve the cove- nant, executed by Mark Moore for Moore Homes Inc., and by William Gothorpe for the Lexington Savings Bank, dated October 15, 1984, and to endorse, by the signature of the Planning Board members, the definitive subdivision plan. 202. Wellington Lane Avenue/Garden Avenue: Attorney Dennis Lowe was present to explain some unforeseen irregularities in the land of Conrad Philipson. Lowe explained that there is a Lot A, with 15,000 square feet of area and 154 feet of frontage, which Philipson would like to sell to Louis DiLuna, an abuttor whose Bon- in -law would like to build a house. DiLuna would transfer about 800 square feet from his lot to comply with the minimum lot area requirement. The problem arose when a field survey showed that part of the Johnson house, at 50 Wellington Lane Avenue, is located within the right-of-way of Garden Avenue which is classified as a paper right-of-way. The original thinking had been to lay out Garden Avenue as a street under the Subdivision Control Law in order to provide frontage for Conrad Philipson's house. Now with a house partly located in the Garden Avenue right-of- way, Lowe is uncertain how to deal with the problem and seeks the Planning Board's guidance. No solutions were immediately apparent and the Board agreed to discuss ' it at a later meeting. 203. SUBDIVISION STREETS FOR ACCEPTANCE AT 1985 TOWN MEETING: The Board reviewed a list showing the construction status of streets in active subdivisions. Of those, only Maple Tree Lane would appear to be ready for acceptance at the 1985 Town Meet- ing and that street has a problem due to the temporary unavailability of granite for curbing in the region. On the motion of Mrs. Flemings, seconded by Mr. Cripps, it was voted unanimously to recommend to the Board of Selectmen that Maple Tree Lane be processed for acceptance as a public street at the 1985 Town Meeting. 204. EXECUTIVE SESSION After a unanimous vote by poll of the Board, it was voted to go into Executive Ses- sion to discuss strategy with respect to litigation which, if discussed in an open session, may have a detrimental effect on the position of the Town. At 8:12 p.m., the Board went into Executive Session. Following the Executive Session, the Board returned to Open Session at 9:28 p.m.. 205. APPLICATIONS TO THE BOARD OF APPEALS As the background material on the cases had not been distributed, the Board was not able to discuss all of the cases to be heard on October 25, 1984. 10 Maguire Road, ITEK: SPS: A draft of the partially completed SPS report was reviewed. The Board agreed to recommend in favor of granting the SPS and to comment favorably on the efforts made by ITEK to revise the traffic and parking proposals from the plan presented in July. The Board will comment that the density Planning Board Minutes: October 15, 1984 2 is still too high, as measured by the floor area ratio even though the CM district does not have a floor area ratio requirement. 10 Maguire Road, ITEK: Variance, Height: The Board agreed to recommend in favor of granting the variance for the height based on special purpose optical test appa- ratus and to recommend that the variance be conditional on the existence of that optical test apparatus. If the apparatus is removed, the variance should lapse so that the building cannot be converted into general office space. REPORTS 206. Planning Board Members, Subcommittees a. Housing Needs Advisory Committee: Mr. Bowyer reported on the receipt of a letter from Esther Lobell submitting her resignation from the Housing Needs Advisory Committee as she has moved to Newton. The meeting was adjourned at 10:00 p.m. Judith J. U rig, Clerk 1 PLANNING BOARD MINUTES EXECUTIVE SESSION: OCTOBER 15, 1984 After a unanimous vote in open session by poll of the members present, the Lexing- ton Planning Board met in executive session in Room G-15, Town Office, at 8:13 p.m. to discuss strategy with respect to litigation which, if discussed in an open ses- sion, may have a detrimental effect on the litigating position of the Town. Present were Chairman Smith and members Cripps, Flemings, Sorensen, Uhrig and Planning Director Bowyer. Chairman Smith reviewed a meeting on the Sherburne Road case and guidelines for lot combination held on October 12, 1984, and attended by Chairman Battin, Board of Selectmen; Chairman Taylor, Board of Appeals; Town Manager Hutchinson; Building Commissioner DiMatteo; and attorney Stephen Anderson of Palmer & Dodge. A copy of "Guidelines for Reviewing Applications for Building Permits to Build on Substandard or "Grandfathered" Lots" prepared by Stephen Anderson was distributed to the Board. Mrs. Smith said these revised guidelines represent the new agreed upon administra- tive approach. Both the Building Commissioner and the Town Counsel have signed on to these guidelines. One further step is a joint meeting between the Planning Board and the Board of Appeals to fine tune the guidelines. While it is considered inappropriate for the Board of Appeals to formally adopt the guidelines, they will use them and it is thought to be most unlikely that the Board of Appeals would grant an appeal that overturns a determination made by the Build- ing Commissioner after consultation with the Town Counsel and the Planning Board. These guidelines will be printed and furnished to all persons who seek building permits on lots that might have been "combined." The Building Commissioner has agreed that he will give a written explanation of the reasons for granting a build- ing permit on any lot subject to these guidelines. The Building Commissioner would not agree to sending each case to the Planning Board but would accept comments under the existing interdepartmental review procedure which is used for all new construction. Under the guidelines, lots are presumed to be combined by deed, by application or use unless an applicant can submit documentation that the lots were not intended to be combined. This shifts the burden of evidence to the applicant who must submit documentation and not simply opinion. Mr. Bowyer distributed a copy of a letter dated October 15, 1984 from Attorney Martin Healy of Rackemann, Sawyer and Brewster, responding to 13 questions about this case posed by the Planning Board. The letter is a summary of Healy's opinions expressed to the Board in the Executive Session on October 9, 1984. Mr. Sorensen distributed a memo he had prepared dated October 14, 1984, outlining five reasons why an appeal to the courts should be taken from the Board of Appeals decision. The Board agreed there were two principal issues: 1) how future cases dealing with the "combination" of substandard lots would be handled, and 2) what to do about the specific case of 4-6 Sherburne Road. Mrs. Smith said her reading is that the Board of Selectmen are unanimously opposed to authorizing the Planning Board to take an appeal to the courts in this case. The expense of an appeal could be double the $10,000-$20,000 that Martin Healy had estimated as the expense of the Planning Board appeal because Town Counsel would likely spend a comparable amount to represent the Board of Appeals and the Town. She thought the Planning Board had "won the war" with the backing of the Board of Selectmen, Town Counsel and the Building Commissioner on the new guidelines. The Board of Appeals has indicated it is highly unlikely that they would reverse a Planning Board Minutes 2 Executive Session: October 15, 1984 determination made by the Building Commissioner with the advice of Town Counsel and the Planning Board. The Planning Board could "win the battle" too if it could get to court but it does not appear that litigation will be authorized. She suggested a letter be sent to the Board of Selectmen, the Town Manager, the Town Counsel, the Building Commissioner and the Board of Appeals describing why the Planning Board has a good case. She was disappointed in the outcome on Sherburne Road itself but thought the major objective was to get agreement on guidelines for future cases. Mr. Sorensen thought the Planning Board should take an appeal to the courts. As pointed out in his October 14, 1984, memo, he thought there were several instances in which past guidelines and past determinations by the Building Commissioner had been reversed and he was skeptical of the effect of administrative guidelines in the future. He thought the courts should rule so that presently unresolved issues would be settled and precedents would be established. Mrs. Uhrig thought a new building 'squished' in on an undersized lot was very troublesome and would be a constant reminder to her of improper action by the Town. She was troubled by the implications of the Board of Selectmen rejecting the Plan- ning Board's request for an appeal. She saw no advantage for future relations between the Planning Board and the Board of Selectmen by pursuing the request for an appeal. Mr. Cripps explained he was new to the process and hoped the administrative struc- ture would fall into place and this set of circumstances would not happen again. If any thing comparable to this happened again, there would be plenty of documentation from this experience and the Planning Board would be in a strong position to carry an appeal. Mrs. Flemings was concerned that the Board of Selectmen appeared to have decided the matter before meeting with the Planning Board. Mrs. Smith said the Board of Selectmen are afraid of the expenditure and the suit and think they have solved the broader issue through administrative reform. Mrs. Flemings said there had to be cooperative give-and-take among the Board of Selectmen and the Planning Board and the overall result was probably acceptable. She thought there should be some better zoning controls for buildings on smaller lots. Mr. Sorensen moved and Mrs. Smith seconded that the Planning Board take appropriate action to appeal to the courts the Board of Appeals' decisions of September 20, 1984, on the Sherburne Road cases. Mr. Sorensen voted in favor of the motion; Mr. Cripps, Mrs. Flemings, Mrs. Smith and Mrs. Uhrig voted against the motion and it was not adopted. It was agreed that none of the members was satisfied with the decision and the situation as it applies to the Sherburne Road property. The Board then discussed the points it wanted to emphasize in the meeting with the Board of Selectmen. The Executive Session was recessed at 9:00 p.m. to meet with the Board of Select- men. At 9:04 p.m. the Planning Board reconvened in Executive Session with the Board of Selectmen in the Selectmen's meeting room. Mrs. Smith stated the Planning Board thinks there is a good case and stands a good chance of winning the case on appeal to the courts, but there are other considerations. She reported that the Planning Board had voted 4-1 against requesting authorization to carry an appeal to the courts. She thanked the Board of Selectmen for authorizing the expenditure of money to retain attorney Martin Healy to advise the Board because the Board had learned a great deal from Healy. Planning Board Minutes Executive Session: October 15, 1984 3 Mrs. Uhrig stated this case was personally very difficult for her because the evidence of the Town's mistakes would be very visible on Sherburne Road. Her rea- son for voting against an appeal was the substantial expense to the Town and the need for Boards and officials to work together on an agreed procedure. Mrs. Flemings said the case was particularly hard for her because it went against her planning training. She thought that Martin Healy's contributions were important in clarifying issues and making for a better set of guidelines. Mr. Sorensen outlined some of the arguments in his memorandum of October 14, 1984, which he distributed to the Board of Selectmen. He was concerned about the number of administrative errors and reversals in this case. He said there were still some unresolved issues such as the combination by application which do not appear to be handled by the proposed new guidelines. He urged that the opinions of Town Counsel be in writing to avoid future confusion. Town Counsel is often misquoted by both sides to an issue because people have a tendency to hear only what they want to hear. Chairman Margery Battin,of the Board of Selectmen thanked the Planning Board for the thoughtful, sensitive way in which it had handled this matter. She said the Town Manager, the Building Commissioner and the Town Counsel are committed to carrying out the guidelines and the Board of Selectmen will take their implementa- tion very seriously. The Executive Session was recessed at 9:17 p.m. ' At 9:20 p.m., the Executive Session was reconvened in Room G-15. The Board dis- cussed next steps. A letter will be prepared explaining the Planning Board's case and what the Planning Board expects to see achieved by the new guidelines. Mrs. Uhrig will prepare a draft of this letter. To work on fine tuning the guidelines, it was agreed to invite Stephen Anderson to the Planning Board's next meeting on October 29. The Board should think about questions it wants to pose to Mr. Anderson. Subsequently, a separate meeting will be held with the Board of Appeals on the guidelines. Chairman Smith said that when the Board or staff has questions on land use issues, it should ask Stephen Anderson directly because he is more of a specialist in land use matters than Norman Cohen. The Executive Session was adjourned at 9:28 p.m. and the Board returned to Open Session. < udith J. Uh Clerk 1