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Planning Board Minutes 12/12/2012
Planning Board, Middleton, MA
December 12, 2012

The Middleton Planning Board met at a regularly scheduled meeting on December 12, 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
Leah Moreschi, Clerk
Beverly Popielski
David Leary
John Knott

Also present:
Thomas Fallon, Town Counsel
Robert LaBossiere, DPW Director
Karen Matsubara, Recording Secretary

Chairperson Christine Lindberg called the meeting to order at 7:30 pm

Meeting Minutes-November 14, 2012

MOTION Made by David Leary to accept the minutes of November 14, 2012 as written.  Motion seconded by Beverly Popielski.  Vote 5-0 in favor, motion carried.

Definitive Subdivision Modification-Lewis Drive (f/k/a Pheasant Ridge) 75 & 77 South Main Street, Map 25, Lots 57, 58, 58A, 58B & 58C-John & Yvonne McAuley
Clerk, Leah Moreschi read the legal notice and confirmed that the abutters had been notified.

Chairperson Lindberg announced that the Board would be going into executive session and the hearing for Lewis Drive would be tabled until the Board reconvened into regular session.

Executive Session
Chairperson Lindberg called for the Board to go into executive session pursuant to MGL Chapter 30A, Section 21 (a), Subsection 3 to discuss strategy with respect to pending litigation as an open meeting may have a detrimental effect on the Town’s litigation position.

Clerk Leah Moreschi requested a roll call vote to go into executive session.
David Leary-yes, Christine Lindberg-yes, Beverly Popielski-yes, John Knott-yes, Leah Moreschi-yes.

Executive session adjourned and the regular Planning Board hearing reconvened at 8:05 pm.

Definitive Subdivision Modification-Lewis Drive (f/k/a Pheasant Ridge) 75 & 77 South Main Street, Map 25, Lots 57, 58, 58A, 58B & 58C-John & Yvonne McAuley (continued)
Engineer Vaclav Talacko of Hancock Associates Engineering reviewed the proposed changes to the previously approved definitive subdivision.  The number of, and configuration of the lots and roadway location is not proposed to change.  The changes being proposed are to the drainage.  A detention basin will be created at the rear of the subdivision.  The roadway will slope toward the cul-de-sac and be lowered 3.5’-4’.  This will reduce the retaining wall from 350’ to 140’ and will be 3.5’ shorter; at its highest point it will be 3’ tall.  Mr. Talacko pointed out the catch basins and other storm water management designed to hold a one-hundred-year storm.  A modification to the Order of Conditions has been filed with the Conservation Commission.

The Planning Board has not yet received correspondence from the Conservation Commission regarding the amended Order of Conditions.

Chairperson Lindberg confirmed that the guardrail that was proposed on top of the original retaining wall will remain and native Ivy will be planted as a covering for the wall.

Mr. LaBossiere stated that comments have not been received back from the third party review by DK Engineering.

In response to a question on the detention basin at the rear of the subdivision, Mr. Talacko further explained that the overflow would be directed into the wetland behind the property.

Janet Parker, abutter to the property questioned the excess drainage to the wetlands.

Mr. Talacko explained that no more water will go into the wetland than goes there now.  When it rains, the first ½”-1” will pick up the salt and dirt and will infiltrate in the pond.  The bigger storms will overflow into the wetland but will have little salt or dirt.

Yvonne McAuley commented that she was making revisions to the plan to help lower the height of the wall for the benefit of the abutter.  It wasn’t until after the original plan was approved that she realized how high the wall was going to be.

Mrs. Parker agreed that the change in wall height was an improvement to the project.

MOTION: Made by Beverly Popielski to continue the hearing to the next Planning Board meeting scheduled for January 16, 2013.  Motion seconded by John Knott.  Vote 5-0 in favor, motion carried.

ANR-63 Lake Street, Map 24, Lot 80-Brett Maloney
Property owner Brett Maloney presented his plan to divide his existing lot into two lots in the R1-a zoning district which requires 20,000 sq ft per building lot.  There is a home located on the lot which will be 31,000 sq ft after the split and the other lot will be 40,000 sq ft.  The new home on the 40,000 sq ft lot will be constructed at the rear of the property.

MOTION: Made by Beverly Popielski to approve the ANR plan for 63 Lake Street.  Motion seconded by David Leary.  Vote 5-0 in favor, motion carried.

Definitive Subdivision-Ridgewood Estates-84 East Street, Map 14, Lots 20 & 20T-LAR Realty LLC (Continued from 9/12/12, 10/10/12 & 11/14/12)
Attorney Jill Mann appeared on behalf of the applicant.  She reviewed some changes to the storm water management and explained that the subdivision is still going through the review process with the Conservation Commission and the third party engineer, DK Engineering.  The number of lots and main access to the subdivision has not changed.  Also there have been no changes to the proposed connections to the abutting subdivisions.

Project Engineer Chris Sparages reviewed the plans in further detail.  The hearing for the subdivision was opened September 12, 2012 and a site visit was conducted in conjunction with the Conservation Commission September 23, 2012. DK Engineering did a cursory review but will not be able to do a detailed review until after a determination is made about the amount of activity that will be allowed in the riverfront.  Since the last hearing a discussion on the construction of a sidewalk along East Street has begun with DPW Director LaBossiere to determine a cost; a waiver will be sought to eliminate the sidewalks on one side of the roadways within the subdivision.  At the request of Mr. Salvo, Engineer for the abutting subdivision, the plan profile for the connecting roadway was sent to ensure that the connection is as smooth as possible.  The property is the former Jewish Community Center it has a total of 88.9 acres, of which 10 acres had been developed as a camp with various outbuildings, pools and sports courts.  The total roadway length within the subdivision will be approximately 7,000 linear feet.  There is approximately 11.1 acres of proposed dedicated open space along the riverfront.  The existing access for the project is over the existing driveway to the camp located between #6 & #10 Towne Road.  The roadway will be widened with 26’ of pavement and a sidewalk on one side.  The project will be broken up into 7 phases.  Mr. Sparages reviewed the phasing plan and the factors used to determine the separate phases.  There are two primary watersheds; both go to the Ipswich River.  The subdivision is proposed to be connected to the Town’s water distribution system with tie-ins to the two abutting subdivisions.  Hydrants will be located throughout the subdivision.

Daniel Mills, Principal Traffic Engineer of MDM Transportation Consultants, Inc. reviewed the traffic report which was based on volume and crash data for the intersection with Locust Street and the projected volume of the three new subdivisions.  The accident rate is lower than the State average for un-signalized intersections.  The level of service analysis determined that the existing service levels are level B for Towne Road & level C for Locust Street and will remain at the same service levels after the subdivision is built.  The amount of traffic projected for Ridgewood Estates is one vehicle trip per resident during peak hours.

David Leary asked if they had considered adding a traffic light at the intersection.

Mr. Mills said they had not, and based on the level of service, a traffic light is not warranted.  He explained the criteria needed for a traffic light in further detail.

Ms. Lindberg suggested a flashing light as an alert of the intersection for the East Street traffic.

Mr. LaBossiere commented that the blind corner on East Street should be taken into consideration and felt there was enough concern over the intersection to have the traffic engineer do another review and come back to the Board.

Ralph DeLeo of 2 Towne Road questioned the dates and times that the traffic study was done.  He did not feel that the analysis took into account all the traffic that will be generated by the new subdivision and was also concerned about the corner.

Tim King of 6 Towne Road also felt that the traffic study was flawed.  He confirmed that in place of the sidewalks on one side of the street within the subdivision, a sidewalk is being proposed along East Street to Maple Street.  Mr. King asked if an alternative access was being proposed to the subdivision as it was his opinion that the access over Towne Road was inadequate for the construction of the subdivision infrastructure and homes.

Ms. Lindberg stated that the only access to the subdivision is off Towne Road the other connections to the abutting subdivisions are private ways until such time as the subdivisions are completed and accepted by the Town; at that time they will be opened for vehicular traffic.

Mr. King commented that at the time he had purchased his lot he was told that the JCC would never be developed.  He questioned adding access to the subdivision over Metcalf Avenue.

Ms. Lindberg explained that Metcalf does not exist; it is a paper road and reiterated that at this time the only access to the proposed subdivision is over Towne Road and that the Board is doing everything it can to provide for the safety and welfare of the citizens.  The current access to the subdivision property is a driveway but will be constructed to current roadway standards.

Liz Cameron stated that it seems that everyone is concerned with the traffic coming out of the new development but no one is taking into account the new “mega” school that is being built just over the line on Rte 62 in Danvers.

Pike Messenger asked for the widths of the lot along the river front.

Mr. Sparages replied that they have been working with the Conservation Commission on limiting the activity within the river front.  As part of the discussion with Conservation the corridor may be widened as much as 100’ at some points along the river front and what is shown on the current plan will be getting wider.  The current width fluctuates from 40’ to 250’.

Mr. Messenger commented that he has been urging the developers to make the public access buffer as wide as possible along the river.

Mr. Sparages pointed out the detention ponds at the request of Mr. LaBossiere.

Mr. LaBossiere suggested a pilot program to install (open) country drainage in the small cul-de-sacs.  The drinking water regulations are changing and the Town needs to come up with large calculations for water recharge.  This is the first development that is before the Board with some of the new criteria for the drinking water permit.

Mr. Sparages explained that the volume in storm water management is based on the impervious areas, the detention areas hold back water which does infiltrate into the ground.  On every lot the entire roof area will be infiltrated through the ground through a series of underground chambers.  There will be a tremendous amount of infiltration as a result of moving some of the storm water management areas out of the river front.

Mr. LaBossiere recommended eliminating the curbing along the roadway and having a swale on either side of the roadway to collect the runoff and in the cul-de-sacs replacing the landscaped islands with rain gardens.

Mr. Sparages agreed to look into Mr. LaBossiere’s suggestions.

MOTION: Made by Beverly Popielski to continue the hearing to the next Planning Board meeting on January 16, 2013.  Motion seconded by David Leary.  Vote 5-0 in favor, motion carried.

Reconsideration of 11/14/12 Vote-Tripartite Agreement and Release of Covenant-70R East Street, Map 14, Lots 12 & 13-Olde Boxford Estates LLC

MOTION: Made by Beverly Popielski to reconsider the vote on the Tripartite Agreement and Release of Covenant for 70R East Street.  Motion seconded by David Leary.  Vote 5-0 in favor, motion carried.

Town Counsel, Attorney Thomas Fallon gave some background on the reconsideration.  The motion for reconsideration was made by one of the members based on new information that was received.  The information was two-fold; one was that at the time the vote was taken the understanding was that the tripartite would cover all of the developer’s obligations, including but not limited to construction of the stub road, the second was that during the course of the hearing the Board was told that Town Counsel was in agreement that it was up to the developer to choose the form of security.  There was never a conversation regarding the security and the Board was told 5-6 times during the 11/14/12 meeting that the developer had no legal obligation to construct the stub road.  In fact, in a letter from Attorney Grenier dated 12/10/12 it states that the developer maintains that, with the exception of laying out the stub road leading to a continued subdivision, he is not legally responsible for construction of same.  The Planning Board Rules and Regulations are quite explicit; the developer has to construct the roads shown on his subdivision plan.  The tripartite agreement covers the obligations as shown on the subdivision plan.  If the developer’s representatives are saying that this is not an obligation then there is an argument as to whether the tripartite covers it or not.  To the developer’s credit the construction of the stub road was started last week.  If it had been started two weeks ago it might have been done by now.  The Board wants assurances that the stub road is going to be completed.

Attorney Alan Grenier stated that their (the developer and his representatives) position is clear as set forth in the complaint.  Case Law is very clear that the Board has no right to reconsider the matter after a vote was taken.  Mr. Falite has started construction of the roadway even though from the approval of the subdivision he is allowed until January of 2014 to construct.  The pavement of the stub road will begin tomorrow; the roadway will be constructed.

Attorney Fallon commented that if the developer could stand before the Board tonight and say that the road was done the Board would take a different position.

Attorney Grenier stated that they would be proceeding to litigation and felt the Board has acted to damage Mr. Falite; one closing has already been destroyed and the Board is about to destroy more.

Attorney Fallon asked if it was every developer’s legal obligation to construct the roadways on his definitive plan.

Attorney Grenier replied that as far as this subdivision approval, it states that the roadways will be constructed, the tripartite agreement states that the security is for the construction of the ways on the subdivision plan; the stub road is one of the ways.

In response to a question from Attorney Fallon as to why construction of the stub road did not begin until two days after the last meeting, Attorney McCann stated that the stub road does not provide frontage for any of the lots within the subdivision.  The stub road is connecting to a subdivision that has not yet been approved so they did not understand the rush to get the connecting road built.

Attorney Fallon advised the Board that they now have to consider Release of the Covenant and approval of the Tripartite Agreement.  Based on the argument that the developer has no legal obligation because construction of the connecting road isn’t shown on the plan, the Tripartite Agreement that was filed doesn’t cover the construction of that road.

Attorney McCann stated that she had submitted a revised tripartite to Town Counsel with added language that specifically covered construction of the connecting roadway.  She asked if the Board would consider the revised tripartite.  It is expected that the connecting roadway will be constructed to binder coat by this Friday.

Attorney Fallon stated that strides have been made after the developer was unable to pick up the release of covenant, but not before.

After additional discussion between Attorney Fallon and Attorney McCann, Attorney Fallon clarified that one of the reasons the Board took the action that it did was because of the statements made that “the developer had no legal obligation for construction of the connecting roadway.”

Attorney McCann stated that the developer has acted in good faith and has moved very quickly to address the concerns of the Board.  The revised tripartite removes any question as to his obligations.  She asked that the Board consider the revised tripartite.

MOTION: Made by Beverly Popielski to not release the Covenant and not execute the Tripartite Agreement.  Motion seconded by David Leary.

Mr. Leary questioned whether the Board could vote to accept the Tripartite provided the roadway is done to binder by Monday.

Attorney Fallon advised against the Board voting to approve the Tripartite with the proviso of completion by a specific date.  If the road was done it would be a different situation.

Vote 5-0 in favor, motion carried.

Reconsideration of Road Improvement Plan-Summit Avenue, Map 13, Lot 64A-George Collins
Chairperson Lindberg explained that this matter is similar to the previous action.  After the Board had voted on the Summit Avenue roadway improvement information was brought to the Board that they should take another look at the approval.  The existing entrance up McLean Court to Summit Avenue is much steeper than is allowed under the Roadway Improvement Rules and Regulations.  The plan that was approved began the improvement at the end of the existing pavement up to the lot on Summit Ave.  The roadway from East Street up to the starting point of the proposed improvement is not sufficient, the grade is very steep and the road condition is not up to par.

MOTION: Made by Beverly Popielski to reconsider the Roadway Improvement Plan for Summit Avenue.  Motion seconded by John Knott.  Vote 5-0 in favor, motion carried.

Chairperson Lindberg asked Mr. Collins if he would submit a new plan showing the additional improvement from East Street up McLean to Lindberg.

Mr. Leary questioned the extent of the request.

Ms. Lindberg explained that the existing roadways were not built to any specifications because the Rules and Regulations for Roadway Improvements were not in place at that time.  “Adequate Access” would not start at the end of existing pavement but from East Street.

Attorney Fallon added that improvement is from the public way up to the lot.

Mr. Leary suggested that the improvement follow the same route as the water line that was proposed to be brought up to the lot.

Attorney McCann explained that there had been discussions with the DPW, Police and Fire before the improvement plan was filed.  Because it is a new regulation it was also brought before the Board informally in May to determine the process.  The project engineer did a great deal of due diligence with Mr. LaBossiere, Police and Fire with regard to laying out the road improvement and understood the plan that would be submitted with the improvement beginning from the end of the existing pavement on Lindberg Ave.  It was also known that building permits had been issued for homes along the other portions of the roadways which would mean that the building inspector had made a determination that there was frontage for those lots and therefore adequate access.  At no time during the conversations with Police and Fire was it conveyed that emergency vehicles were unable to get up the roadway from East Street.  In fact, the Fire Chief was happy that water was being brought up because there isn’t any public water up there now.  If the Board feels that the plan is deficient it needs to be stated specifically as to what the deficiency is so that it can be properly addressed.  Nowhere in the Rules and Regulations does it say that the improvements need to start at a public way.

Attorney Fallon agreed with Attorney McCann that if the plan is found to be unsatisfactory, the Planning Board shall deny the application; the reasons for the denial shall be included in the Board’s decision.  Once the applicant has addressed the reasons for disapproval and submitted such to the Planning Board, it may be approved by the Board without a public hearing.  There is no prejudice to the denial of the plan, the Board needs to indicate what the problem is and the applicant can choose to address the issues and draft a new plan for approval.  Prior to a permit for new construction the Building Inspector must obtain a determination from the Planning Board that the lot upon which the building is being erected has frontage upon a street, the zoning bylaw defines a street as a way which, in the reasonable judgment of the Planning Board, has sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic existing and/or resulting from the development of abutting land and the installation of municipal services.  The traffic is going all the way to East Street.  There was a letter in which the Fire Chief had stated concern over the ability of making the turns with the fire trucks.

Mr. Leary stated that all the concerns of the Fire Department had been addressed and the engineer had agreed to address the approach from East Street.

Attorney Fallon stated that the change would need to be shown on the plan or it would not be binding.  In consideration of the adequacy of the roadway you have to take into consideration the homes existing on the roadway as well as the addition of the new home.

Attorney McCann reiterated that the Board needed to vote on the plan before them; if they choose to deny the plan, they need to state the reasons for the denial so that those issues can be addressed.

Attorney Fallon confirmed with the Board that the plan presented did not cover the improvement from East Street.

Attorney McCann commented that the regulations state that additional improvements may be required to the remainder of the subject road but that the Board did not require it when they had given their original approval.

Chairperson Lindberg stated that the Board would like to see the improvement start from East Street up to the originally proposed improvement.

Site Engineer Scott Cameron clarified that the issue on the departure from East Street had come up after the decision.  Every effort had been made to address any safety concerns prior to filing the plan and it was believed at the time that there were no issues.  The existing grade on the street is 15%-20% at the intersection with East Street.

Attorney Fallon felt there was a misunderstanding with regard to the road improvement bylaw.

Mr. Collins commented that he had done everything that had been required.  It was his interpretation that the improvement was for the frontage of the lot and he had gone beyond that requirement by over 800’.  He also stated that he intended to repave McLean and address the departure from East Street.

MOTION: Made by Leah Moreschi that the current plan is insufficient to provide adequate access to the lot on Summit Avenue identified as Middleton Assessor’s Map 13, Lot 64A.  The petitioner can come back to the Board with a revised plan at no penalty to him.  Motion seconded by David Leary.  Vote 5-0 in favor, motion carried.

Other Business-

Discussion of road acceptance-Smith Farm Estates (Ross Lane & Warren Drive)-Continued from 11/14/12)

Chairperson Lindberg stated that a letter from Peter Ogren of Hayes Engineering had been received today.  Another water test was run last Friday and it was determined that one of the catch basins that was previously indicated as not catching water has now been fixed and is working properly.  She asked Mr. LaBossiere if a complete set of updated as-built plans was submitted.

Mr. LaBossiere stated that only the page provided to the Board tonight showing the recent changes was current.  The rest of the as-built plans are from 2009.  It is up to the Board to determine if they want a whole set stamped with a current date.

Mr. Ogren of Hayes Engineering explained that the reason they did not submit an entire set is because nothing else has changed in the subdivision.  The only thing that was changed by Hayes Engineering was with the grades for the four catch basins.  Other changes may have been made by someone else since 2009 that he is not aware of.

Ms. Lindberg stated that before the Board can recommend the subdivision roadways for acceptance they have to be confident that it was built to the specifications of the definitive approval.  The Board is not able to do that with the plans stamped by two different engineers in two different years.

Mr. Ogren commented that it was two different engineers but the same company and he failed to see why they have to redo the work that was already done when in 2009 the subdivision was originally ready for acceptance.

Ms. Lindberg replied that it was because the road was not accepted in 2009 by the Town but are potentially accepting it in 2013.  The plan needs to be stamped showing that it was built to the specifications.

Mr. Ogren stated that the as-built plans show that the subdivision was built in accordance with the specifications, there are always small discrepancies.

Aaron Walsh, abutter to the property, thought that a different third party engineer was going to be hired to review the subdivision and commented that the 2003 Order of Conditions from the Conservation Commission has expired and that no extension for that order had been filed.

Attorney Nancy McCann stated that Mr. Falite was present and was authorizing Hayes Engineering to provide a complete set of updated as-built plans stamped by one engineer with one date.

Ms. Lindberg explained that since the developer has corrected the problem with the catch basins along the roadway and have indicated that all the water is flowing the way it was designed, the Board does not intend to hire an independent engineer to review the subdivision.

Ms. Arizzi argued that no data has been provided to show that the repair has worked.  All that they want is an independent analysis.

Mr. Walsh questioned the lack of data on the detention pond and the 6’ spillway onto his property; the issue of the cracked water tank for fire suppression has also not been addressed.

Mr. Leary stated that the water tank is currently being tested.  If it found to be is leaking the developer has agreed to fix it.

Ms. Lindberg added that the Board has not received any correspondence from the Fire Department with regard to the water tank.  The situation has been discussed with Town Counsel who agreed that if the developer could produce an as-built plan showing that the subdivision was built the way it was designed then that would meet the requirement for acceptance of the roadways.

With regard to the detention pond at the front and the 6’ spillway, Mr. Ogren explained that he had corresponded with and had provided a copy of the as-built plans to the abutter’s engineer.  The detention basin in question was added before the final definitive approval but no calculations were done because a mass balance of the water had already been done with the project’s storm water system as it was originally designed.  The design engineer had wanted to let the last 130’ of the new street run onto Peabody Street as it had always drained in that direction, instead the detention basin was added to capture that runoff.  The spillway was removed by Mr. Falite and he was uncertain why that had happened.

Ms. Lindberg reiterated that the Board had requested a full set of current as-built plans certified by the engineer.  There is no action for the Board to take tonight and there will be no other meeting on the subject until the Planning Board public hearing to give recommendations on the Town Meeting warrant articles.  With regard to the Order of Conditions, it is up to the Conservation Commission to make a determination on the acceptance of the road and send a letter to the Board advising them of their position.

Attorney Fallon advised the abutters that if they feel the developer is causing a private nuisance on their property then they should file a lawsuit against the developer.

MOTION: Made by David Leary to adjourn.  Motion seconded by Beverly Popielski.  Vote all in favor to adjourn.  Meeting adjourned at 11:11 pm.