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Planning Board Minutes 11/14/2012
Planning Board, Middleton, MA
MINUTES OF THE MEETING
November 14, 2012

The Middleton Planning Board met at a regularly scheduled meeting on November 14, 2012 at the Fuller Meadow School, 143 South Main Street, Middleton, Massachusetts at 7:30 PM.

The following board members were in attendance:
Christine Lindberg, Chairperson
Beverly Popielski, Acting Clerk
John Knott
David Leary (arrived late)

Also present:
Robert LaBossiere, DPW Director
Karen Matsubara, Recording Secretary

Chairperson Christine Lindberg called the meeting to order at 7:37 pm.

Meeting Minutes-September 12, 2012 and October 10, 2012

MOTION Made by Beverly Popielski to accept the minutes of September 12, 2012 as written.  Motion seconded by John Knott.  Vote 3-0 in favor, motion carried.

MOTION: Made by Beverly Popielski to accept the minutes of October 10, 2012 as written.  Motion seconded by John Knott.  Vote 3-0 in favor, motion carried.

ZBA Recommendation-1 & 11 So Main St, 4 Lake St, and 9 Pleasant St, Map 25, Lots 74, 122 & 123, Map 24, Lots 63 & 72A–Town Center & Town Common Committee
Chairperson Lindberg disclosed that she was a direct abutter to the project but had no financial interest in the matter.

Town Administrator Ira Singer appeared on behalf of the Town Center & Town Common Committee.  The Town is seeking approval for improvements to the Town Center and an electronic sign for displaying community events.  Mr. Singer pointed out that plan “L2” erroneously includes a parcel of property not owned by the Town and is not part of the proposal at this time.  He reviewed the proposal to improve the landscaping, parking and allow additional pedestrian access along the former Lois Lane property as well as expansion of the green in front of the library and center including the area that was formerly temporary library parking.  Two new colonial lights and a new brick sidewalk along 114 to connect to the existing brick walk will be added.  In addition, a new concrete sidewalk will be added along Pleasant Street to connect to the existing concrete walk at the rear of the library.

Mr. LaBossiere added that more plantings are going to be added along the edge of the fire station.

Chairperson Lindberg pointed out that the plan does not accurately reflect where the sign is to be placed on the property.

Mr. Singer explained that there are two potential locations for the sign placement.  A temporary sign of the same dimensions is currently located in one location and will be moved to the other location in about a week so that a determination of the best placement can be made.  The sign will have granite posts with an electronic message face and a carved wooden top with copper lettering that will say “Middleton Square” and also display the address, 1 South Main Street.  There will also be plantings at the base for ground cover.

Chairperson Lindberg suggested hearing the Town’s other petition prior to voting.

ZBA Recommendation-48 South Main St, King St, & 17 Maple St, Map 25, Lots 80, 91 & 118-Town Center & Town Common Committee-Site Plan Approval
Ira Singer explained that only “Phase I” is being proposed at this time.  That phase includes the extension of the parking lot by 10 spaces behind Memorial Hall and the replacement of the existing tots playground with the equipment that was removed from the Howe Manning School during construction of the new school.  A child-safe play surface will be added as well as some fencing.  Mr. Singer also reviewed the future phases on the plan which include a pedestrian walkway, picnic area, a potential war memorial, sledding hill, relocation and restoration of the historic train station and installation of restroom facilities.

MOTION: Made by Beverly Popielski to give a favorable recommendation for a special permit and site plan approval for the landscape improvements including an electronic message board sign, additional parking, plantings, period lights and walks at the Flint Public Library.  Motion seconded by David Leary.  Vote 4-0 in favor, motion carried.

MOTION: Made by Beverly Popielski to give a favorable recommendation for site plan approval for the expansion of the existing parking by 10 additional spaces, replacement of equipment for the child’s play area and the relocation of two lights at the Town Common property.  Motion seconded by John Knott.  Vote 4-0 in favor, motion carried.

Definitive Subdivision-Ridgewood Estates-84 East Street, Map 14, Lots 20 & 20T-LAR Realty LLC
Chairperson Lindberg read a request for continuance from the applicant’s attorney, Jill Mann.

DPW Director Robert LaBossiere suggested that because the project is so large it may be difficult for the third party engineer to complete his review without first getting comments from the Planning Board.

MOTION: Made by David Leary to continue the hearing to the next Planning Board meeting on December 12, 2012.  Motion seconded by Beverly Popielski.  Vote 4-0 in favor, motion carried.

ANR-20 Upton Hills Lane, Map 15, Lot 8–Peter & Laura Fitzpatrick
Chairperson Lindberg reviewed the plan to swap land between #18 and #20 Upton Hills Lane and clarified the old and new lot lines for the Board members.  There was confusion on the plan because broken lines were used to represent an easement rather than the old lot lines.

The Board did not have anything signed by the property owners of 18 Upton Hills Lane signifying their agreement with the petition.

Chairperson Lindberg tabled the ANR hearing to give the petitioner the opportunity to get authorization from the owner of 18 Upton Hills Lane.

Tripartite Agreement and Release of Covenant-70R East Street, Map 14, Lots 12 & 13-Olde Boxford Estates LLC
Attorney Nancy McCann appeared on behalf of the applicant.  She confirmed that the Board was in receipt of the bond estimate prepared by Mr. LaBossiere.

Chairperson Lindberg stated that the Board had received prior documentation prepared by the project engineer that did not include the calculations for the connecting road.

Attorney McCann explained that she had prepared her documents based on calculations estimated by her engineer.  Under the Statute and Planning Regulations the Board comes up with their own tripartite amount which was prepared by Mr. LaBossiere.

Mr. LaBossiere added that his estimate includes the contingency amount as well as the estimate for the connecting road; the total amount proposed for the tripartite is $269,995.  The roadway work is 75% complete with the exception of the connecting roadway which has not been started.

Chairperson Lindberg asked why the connecting roadway has not been constructed.

Attorney McCann replied that “they” were not in agreement that the connecting roadway was part of the subdivision but did acknowledge that it was part of the bond.  The roadwork, sidewalks and binder has been done to provide access and frontage for all the lots within the subdivision.  The connecting road provides no access or frontage for any of the lots within the subdivision.

Ms. Lindberg stated that construction of the connecting road was part of the approval of the subdivision and that the Board has had problems with the developer in the past.  She felt that the connecting roadway needed to be built prior to release of the covenant.

Attorney McCann retorted that the bond amount covers the cost of full construction of the connecting roadway and that the applicant has the option to pick the type of security and can substitute the chosen security for one of the other forms of security at any time provided that the amount is sufficient to the Planning Board to cover the work remaining.  The applicant could have posted a tripartite from day one; there is no requirement that a covenant be posted.

Ms. Lindberg stated that the Board can vote to not accept the tripartite or release the covenant.

Ms. Popielski suggested that the Board could take the amount for the connecting road and have the developer of the abutting subdivision build the road.

Mr. LaBossiere said that couldn’t be done because it is the property of the 70R East development.

Attorney McCann warned the Board that if the developer loses sales because of the Board’s refusal to release the covenant, they are taking on liability for the Town.

Mr. LaBossiere commented that the developer is telling potential buyers that the roadway will never be built.

Attorney McCann reiterated that there is protection for the Town in the bond estimate.

Chairperson Lindberg stated that the Town also has protection with the developer’s other subdivision in Town and seven years later it is still not complete.  Ms. Lindberg stated that she would be voting to not release the covenant based on the fact that the developer has done a certain amount of work on two of the roadways and hasn’t even cut a tree in the right of way on the third roadway, combined with the fact that Attorney McCann told the Board that it is believed that the connecting roadway does not have to be built.

Attorney McCann again stated that the bond includes construction of the connecting roadway and there is a legitimate disagreement that the roadway has to be constructed by the developer.

Ms. Lindberg stated that the roadway is shown on the plan.  The developer will build the road or the Board will rescind his subdivision and he will not sell any lots.

Mr. LaBossiere commented that a right of way is shown on the plan and the Planning Board Rules and Regulations state that the roadway has to be built out to the property line.

The engineer for the project explained that the connecting roadway was not designed because they did not have an approved plan profile of the abutting subdivision to determine elevations and drainage.

Attorney McCann suggested setting a timeframe for completion and if the developer does not meet his obligations, then take his bond.  She also stated that she had asked for the opportunity to speak with Mr. LaBossiere and the Board to clarify when and by whom the connection needed to be constructed and was not given that opportunity.  The layout of the roadway was made, an easement was given and the bond is adequate to cover the cost of construction.

Chairperson Lindberg stated that she had consulted with Town Counsel and was advised not to release the covenant.

Attorney McCann stated that she had also spoken with Town Counsel who advised Mr. LaBossiere to estimate the bond at 2:15 pm this afternoon so that lots could be released.

Mr. LaBossiere confirmed that he was directed by Town Counsel to prepare a bond amount and assumed that Town Counsel had spoken with the Chairperson as well.

Mr. Knott was in agreement that the road should at least be started prior to release of the covenant.

Ms. Popielski had the same feelings about the developer but did not want to incur a needless suit or liability against the Town because the developer does have the right to go after the Board if he is unable to sell his lots.  She made it clear that she would not release one penny of the bond until the connecting roadway was built out.

Mr. LaBossiere suggested that the bond amount could be increased.

Ms. Popielski suggested increasing the bond amount to $400,000 to be held until the connecting roadway is built out within a specified time frame.

Mr. LaBossiere recommended starting the timeframe for completion of the connection from the time the abutting subdivision is approved.

MOTION: Made by Beverly Popielski to release lots #1-16 and sign the release of covenant subject to the bond being in the amount of $450,000 none of which will be released until the “no name” road is built out to the lot line with a deadline of May 30, 2013 for the construction of said road to binder.  Motion seconded by David Leary.  Vote 3-1 in favor, motion carried.  Christine Lindberg voted in opposition.

The covenant release will be held by the Planning Board and will be exchanged with the tripartite agreement once it has been executed by the Bank and the Developer.

ANR-20 Upton Hills Lane, Map 15. Lot 8-Peter Fitzpatrick (continued from earlier)
Mr. Fitzpatrick and Mr. Canavan appeared before the Board.

Chairperson Lindberg confirmed that Mr. Canavan was in agreement with the proposed ANR plan.

Mr. Canavan stated his consent to the proposal.

MOTION: Made by John Knott to approve the ANR for 20 Upton Hills Lane.  Motion seconded by Beverly Popielski.  Vote 4-0 in favor, motion carried.

Other Business-

Discussion of road acceptance for Smith Farm Estates

Aaron Walsh abutter to the property stated that since 2010 the developer has been telling him that he cannot do anything regarding the flooding on his property unless the Town directs him to do so.  It has been represented by Mr. Falite that the area of flooding on the property was used by Ms. Smith’s daughter as a swimming pond.

Ms. Smith stated that this was not true and that she had lived at the property now belonging to Mr. Walsh for over 40 years.  She had viewed the videos and photos of the flooding on the property and confirmed that the flooding had not occurred in the past.

Attorney McCann stated that she has been involved with the Smith Farm Estates project for three days.  She asked the developer, Mr. Falite, if she could meet with Mr. Walsh and Ms. Arizzi.  A letter was sent to them and they are in the process of setting up a meeting but are waiting until the engineer and Mr. Falite would be available.  The engineer was not able to be in attendance tonight because he is out of the country.  Attorney McCann explained that she tried to continue the matter to the next Planning Board meeting so that the engineer and developer could be present but was informed that the Board was keeping the discussion on the agenda.

Chairperson Lindberg explained that a packet dated October 23, 2012 which had been addressed to Attorney McCann with a copy sent to Mr. LaBossiere was distributed to the Board.  The packet included a letter from Hayes Engineering, an as-built plan and other documentation indicating that the project roadways were ready for acceptance.  The as-built plan that was submitted was stamped in 2009 with clarifications written on the plan in pen.  That plan is not acceptable.  The letter submitted by Hayes states that one of the catch basins does not catch any water at all.

Mr. LaBossiere added that the as-built plan is stamped by an engineer that no longer works for Hayes Engineering.

Mr. Leary commented that it is believed that one of the 20,000 gallon fire tanks is leaking and needs to be tested.  This problem has not been addressed because it was just recently discovered.  Mr. Falite is aware that something may be wrong.

In response to a question from Attorney McCann regarding the matter being on the Town Meeting Warrant twice, Chairperson Lindberg explained that the Planning Board did not recommend acceptance because they have never received proper documentation that the road was built to specifications.

Mr. Walsh also mentioned that there is a detention pond with no data.  Mr. Walsh’s engineer John Morin has also tried unsuccessfully to get the data from the engineer.

Ms. Lindberg stated that even if everything within the subdivision is fixed and the proper documentation is provided, the abutters still have a flooding problem on their property.

Mr. Walsh explained that there was a hill which was cut down and a 6’ spillway was added on the corner of his lot that was not on the original plan.

Ms. Smith commented that no one has ever asked her to attend one of the meetings.  She had lived at her home for over 40 years.  She tried to contact Mr. Falite in reference to the letter that was sent to the residents of Smith Farm Estates because of incorrect information regarding her children playing in a pool of water on the property.  There was water in the gully between the roadway and the stone wall during heavy rain.

Ms. Arizzi explained that when her engineer was surveying her property he noticed that Title V sand was coming to the surface of the leaching field, suggesting that it is happening because of pressure from all the water. She expressed concern that when a home is built on lot #1 of the subdivision located just behind her property, the water problems will be worse.

Mr. Walsh made a request that the Board, in accordance with the Planning Board Rules and Regulations 250-15, hire professional assistance to review plans and inspect Smith Farm Estates, at the cost of the applicant to help resolve the issues before acceptance of the roadways, Ross Lane and Warren Drive and also requested that the Board modify, amend or rescind based on the evidence presented over the past two and a half years.

Ms. Lindberg said that in the Planning Board Rules and Regulations it states that if the developer fails to comply with building the subdivision, the Board shall have the right to modify, amend or rescind its approval of a plan of a subdivision or to require a change in a plan as a condition of its retaining the status of an approved plan.

Ms. Popielski commented that there are homes built on the subdivision and the regulations aren’t clear but she did not feel that the Board could rescind the subdivision once homes are constructed.

Ms. Lindberg stated that the developer would be required to pay additional money for a third party engineering review.

Mr. Walsh asked that DK Engineering not be the third party review because of the review done on the “sketch” of the detention pond with no engineering.

Ms. Lindberg commented that the detention pond in question was not part of the original plan and was put in at the request at the property owners on the other side of Peabody Street across from the subdivision.  It was added above what was approved and if built to specifications was supposed to handle all the runoff of the subdivision.  The developer should have had the detention pond engineered to be able to prove that it was working properly.

Mr. Walsh asked how long this matter would be allowed to drag on because, from a legal standpoint, there is a window in which he has to take action against the developer.

Ms. Popielski suggested that they should take action now and not wait for the Board.

Ms. Lindberg stated that she would consult with Town Counsel to find out where the Board stands.

Attorney McCann suggested that she hold a meeting with Mr. Walsh, Ms. Arizzi and their engineer, the project engineer, Mr. LaBossiere and Mr. Falite to figure things out and come back before the Board at the January meeting.

Chairperson Lindberg stated that in addition to the problems that the Board is aware of, there may be other problems within the subdivision that they don’t know about and suggested that the entire subdivision needed to be reviewed to ensure that everything is done properly.  At the next meeting a plan should be in place; options should be presented based on Town Counsel opinion; Attorney McCann can report on the meeting with the abutters, engineers and Mr. LaBossiere; and a third party engineer will be identified along with an associated cost to inspect the subdivision at the developer’s expense.  In addition, a timeline for the independent review needs to be set and Mr. Falite needs to be at the meeting.

Attorney McCann stated that a reasonable timeframe needed to be set so that she could come up with something meaningful and to try to hash things out; she did not feel that it was feasible by December 12, 2012.

Chairperson Lindberg felt that the best approach would be for the Town to hire the independent engineer to go through the entire subdivision at the expense of the developer.

In regard to the fire tank Mr. LaBossiere explained that the fire department tests all the tanks in Town on a regular basis; the tests were just done.

Attorney McCann stated that she had spoken with Mr. LaBossiere earlier regarding two issues with the subdivision but it sounds like there are more problems and does not want miscommunication between the parties.

Mr. LaBossiere commented that he is limited in discussion to the subdivision plan approved in 2002.  He also stated that if the Board is requesting that he hire the third party engineer it would take longer than a month because he has to follow the procurement laws and would consult with the Town Administrator and Assistant Town Administrator.

Chairperson Lindberg commented that the matter would be put on the December meeting agenda as a discussion item but could change depending on the discussion with Town Counsel.

Attorney McCann reiterated that she is just getting involved with the project and will be sure that Mr. Falite is aware of all the comments made this evening.  She reviewed that the discussion would include names of engineers, scope of work, timeframes and confirmed that she could speak with Mr. LaBossiere regarding the approved plan.  She stated that her question would be, “is the subdivision built to specifications?”

Ms. Lindberg replied that the answer is, “how do we know?”  “We don’t have a valid as-built plan.”

Attorney McCann commented that if that is the answer, it is a good answer; what would not be helpful would be if Mr. LaBossiere could not talk to her about the subdivision.

MOTION: Made by Beverly Popielski to adjourn; vote all in favor to adjourn.  Meeting adjourned at 9:49 pm.