Present: Diane Taylor, Chairman; Thomas Flagg; Nancy King; Donald Stroetzel; Toby Welles; Jim Bacon, Alt.; Regina O’Brien, Alt.
Absent: Jerry Sarnelli, Alt.
Also present: Peter Olson, Commission Counsel
Jo-an Brooks, Land Use Coordinator
John Hayes, Town Planning Consultant
The Chairman called the meeting to order at 7:33 p.m.
I. APPROVAL OF MINUTES -Meeting of 3/26/13
On the motion of D. Stroetzel and the second of T. Welles, the Commission voted unanimously to approve the 3/26/13 Minutes as amended: II. Resub. App. #523, first paragraph, first line, change “2/1/13” to “2/12/13.”
II. DELIBERATION. POSSIBLE VOTE.
Resubdivision Application #523, Costa Stergue, 24 and 25 Costa Lane. 14.5 acres into 6 lots. Received 9/25/12. Presentation 10/23/12. Public Hearing opened 11/27/12, continued 12/10/12; 1/8/13; 1/22/13; 2/12/13. Public Hearing Closed 2/26/13. Deliberation 3/26/13.
D. Taylor noted that all voting Commissioners must have attended all meetings or listened to all tapes on this application.
T. Welles submitted an additional map of areas of new steep slopes and fill into the record.
D. Taylor moved the following motion: I hereby move that the Commission deny Application #523, an Application for Resubdivision of land known as 24 Costa Lane and 25 Costa Lane (the “Property”) into six (6) lots, filed by the property owner Costa Stergue (the “Applicant”), for the reasons stated hereafter (attached and on file at the Land Use Office.) On the second of T. Welles, the Commission voted 3-0 to approve the motion and deny the Application (D. Taylor, T. Welles and N. King in favor). D. Stroetzel and T. Flagg abstained. Following the vote, D. Stroetzel and T. Flagg stated that they had abstained solely due to an inability to listen to defective tape of one night of the Public Hearing, but would have otherwise voted in favor of the motion.
1. Reference App. #491, Lot 6, (Sebastian Amstutz), 30A Blueberry Hill Road. Final map received for review.
After review of the new map, the Commission concurred that the drawing needs to darken the new Building and Construction Restriction Line and the old line needs to be deleted. The pool pump and filtration system locations also need to be added to the map.
2. Incentive Housing Zones. Discussion. Final review. Design Standards and recommendations for attachments to Zoning Requirements.
N. King received new information from J. Hayes. She will email a report to the Commissioners. J. Hayes will submit the remaining information by early next week for review at the next meeting.
3. Scenic Road Monitoring: Bi-monthly Reports of any new or pending problems i.e. grading on the curve at intersection of Wayside Lane and Umpawaug Road (nearest Georgetown) and new dumping of woodchips at intersection of Umpawaug Road and Marchant Road.
N. King reported on her inspection of the grading at the intersection of Wayside Lane and Umpawaug Road. T. Welles will review the new work opposite Wayside Lane and the additional woodchips on Umpawaug and Marchant with J. Hanson, Highway Superintendent.
1. Reference App. #505, Petra Koegel, owner. 16 Costa Lane. ZBA approved location of dog kennel and shed outside the Zoning setbacks. Location approved by Planning. To submit map showing the adjusted Building Construction Restriction Line.
2. Reference Subdivision #391, Lot #8-A, 163 Sunset Hill Road, Kathlene Tracy. Request to create an additional driveway entrance.
3. Town Plan of Conservation & Development. Discuss recommendations for action.
4. Scenic Road Flyer: Discuss reprinting, stonewall amendments, distribution to Town Hall, Library, Realtors, others, budget.
V. CHAIRMAN’S REPORT
Update of Subcommittees.
Discussion tabled until the next meeting.
On the motion of T. Welles, the Commission voted unanimously to adjourn the meeting at 8:25 p.m.
ATTACHMENT TO MINUTES:
I hereby move that the Commission deny Application No. 523, an Application for Resubdivision of land known as 24 Costa Lane and 25 Costa Lane (the “Property”) into six (6) lots, filed by the property owner Costa Stergue (the “Applicant”), for the reasons stated hereafter.
The Commission hereby finds as follows:
1. The Commission held public hearings on this Application for Resubdivision on November 27, 2012, December 10, 2012, January 8, 2013, January 22, 2013, February 12, 2013 and February 26, 2013.
2. During the public hearings, the Commission heard testimony from the applicant, its counsel and its consultants, from the public, and from the Commission’s retained consultants.
Findings concerning the road to serve the proposed lots:
3. The Property has been part of prior applications for subdivision and resubdivision, including Application Nos. 276 and 499 which were denied by the Commission.
4. The first approved application was Application No. 248, approved by the Commission on July 13, 1976. Application No. 248 created seven building lots along Gallows Hill Road, and did not propose any private or subdivision road.
5. The next approved application was Application No. 305, approved by the Commission on January 22, 1980. Application No. 305 created five additional building lots, and three additional parcels labelled Parcels A, B and C. Application No. 305 proposed a private road to serve these additional parcels, a private road which was in the identical configuration as is Costa Lane today.
6. In the minutes of the meeting of the Commission on April 14, 1981, in a discussion concerning Application No. 305, the Commission noted that:
“The subdivision road is not a town road. A positive easement must be given to the people buying the lots on the road. Mr. Hayes states that a copy of the easement should be submitted to establish the care and maintenance of the road.”
7. The third approved application was Application No. 505, approved by the Commission on January 10, 2006. Application No. 505 divided Parcel A into three additional building lots. Application No. 505 proposed that the private road Costa Lane be accepted as a Town Road.
8. Although the Applicant partially constructed Costa Lane in accordance with Application No. 505, he failed to complete construction by applying the final course of asphalt or complying with the road safety items required by the Town Engineer to complete the road. Further, the Applicant failed to request or secure formal acceptance of Costa Lane as a Town Road.
9. On May 11, 2010, the Commission voted to amend the conditions of approval of Application No. 505 to permit the issuance of building permits for the lots in that Application, despite the failure of the Applicant to complete Costa Lane or secure acceptance of it as a Town Road, and provided that
“S3. The applicant shall complete all required road improvements and secure acceptance of the road as a Town Road in accordance with the original approval no later than the original expiration date of the subdivision, May 17, 2011, unless further extended by action of this Commission.”
10. The Applicant again failed to complete all required road improvements and secure acceptance of Costa Lane as a Town Road prior to May 17, 2011, the date on which the resubdivision approved by Application No. 505 expired.
11. The Commission finds that as a result of the failure of the Applicant to complete the improvements proposed by Application No. 505 prior to the date on which the resubdivision expired, Costa Lane ceased to be a proposed subdivision road and reverted to its status as a private road after May 17, 2011.
12. As of the date this Application No. 523 was submitted, the Applicant still had not completed all required road improvements nor secured acceptance of Costa Lane as a Town Road.
13. Nevertheless, on December 10, 2012, as part of the proceedings on this Application, the Commission voted unanimously to accept a request for a waiver of Regulations Section 4.3.10 in order to preserve the name of the road as Costa Lane and to permit the Applicant to request acceptance of Costa Lane as a Town Road.
14. On February 12, 2013, as part of the proceedings on this Application, and again in furtherance of the Applicant’s efforts to secure acceptance of Costa Lane as a Town Road, the Commission unanimously approved the following motion:
“Having voted on 12/10/12 to waive the requirements of Subdivision Regulation Section 4.3.10 to restore the name of “Costa Lane” in perpetuity in order to prevent hardship for the affected residents, and having determined on advice of our engineering consultant that the cash bond credit being held by the Town is sufficient to complete the unfinished work required to meet Town standards whether completed as planned by the applicant, or if necessary by the Town or its contractors, I move to recommend to the Board of Selectmen that this road be proposed for acceptance as a Town Road at the Town Meeting to be held on Wednesday, February 13, 2013.”
15. At the Town Meeting held on February 13, 2013, the Town did not accept Costa Lane as a Town Road.
16. Although the public hearing closed on February 26, 2013, through the date of this motion, the Applicant has taken no further steps to secure acceptance of Costa Lane as a Town Road.
17. As of the date hereof, Costa Lane is not a Town Road.
18. Subdivision Regulations Section 4.1.7 provides that
“4.1.7 Every front lot (S.R. 8.1.125) shall own in fee simple a minimum of fifty feet of contiguous frontage along a State, Town or proposed subdivision road.”
19. Given the foregoing Findings, the Commission finds that Costa Lane is not a State Road, or a Town Road.
20. The Commission further finds that Costa Lane is not a proposed subdivision road. The applicant has failed to secure acceptance of Costa Lane as a Town Road for over thirty three (33) years. The Commission has provided the Applicant with sufficient flexibility in the timing of issuance of approvals and permits so as to permit the sale of all of the homes permitted up to and including Application No. 505. Still, the Applicant has failed to secure acceptance of Costa Lane as a Town Road. The time provided by the Commission to secure such acceptance in Application No. 505 has passed. Accordingly, the Commission is constrained to find that Costa Lane is not a proposed subdivision road.
Findings concerning lots requiring special development precautions:
21. Subdivision Regulations Section 3.3.1 provides that
“3.3.1 Development of any land requiring special precautions for development (as defined in S.R. 3.2) is prohibited unless specifically approved by the Commission in accordance with the provisions of this Section and S.R. 4.1.6.”
22. Subdivision Regulations Section 3.2 sets forth the types of land which require special evaluation.
23. The Commission hereby finds, based upon the evidence in the record of the public hearing, that the Property is land requiring special precautions for development as set forth in Regulations Section 3.2. In particular, the Property contains:
a. Natural slopes of twenty (20%) percent and greater (See Subdivision Regulations Section 3.2 (f)); and
b. Ledge Rock areas, characterized by extensive out-cropping of bedrock or surface concentrations of large bedrock debris (See Subdivision Regulations Section 3.2 (g));
24. The Commission finds that the entire Property contains a large percentage of natural slopes exceeding twenty (20%) percent.
25. Subdivision Regulations Section 3.3.6 provides that
“3.3.6 The Commission may permit the development of land evaluated in S.R. 3.1 only when it finds that no adverse impact to the site and surrounding areas will result to health, safety, the indigenous character of the land or the resources of the area as defined by S.R. 1.2. …”
26. Based upon the evidence presented during the public hearings, and based upon the competent expert testimony provided by Nicolle Burnham, a professional engineer with Milone and MacBroom, Inc., engaged by the Commission to review the Application, the Commission hereby makes the following findings as to the adverse impacts to the site and surrounding areas which would result from approval of the Application as presented:
a. As to Lot 2, a significant adverse impact to health, safety and to the indigenous character of the land and the resources of the area will result because the proposed driveway requires extensive blasting and retaining walls to create a route over/through ledge with a maximum cut depth exceeding fifteen (15) feet along the property frontage.
b. As to Lot 3, a significant adverse impact to health, safety and to the indigenous character of the land and the resources of the area will result because the development of a relatively natural house location would require the construction of 423 feet of retaining wall ranging in height from two to six feet.
c. As to Lot 4, a significant adverse impact to health, safety and to the indigenous character of the land and the resources of the area will result because a large amount of ledge rock must be removed by blasting to create an adequate area for the footprint of the house, leaving a modified ledge which would have very steep slopes on its face. Further, the house location requires the construction of 736 feet of retaining wall ranging in height from five to six feet.
d. As to Lot 5, a significant adverse impact to health, safety and to the indigenous character of the land and the resources of the area will result because a deep ledge cut in excess of twenty four (24) feet is proposed for the driveway alone, including 200 feet of retaining wall. Further, the house site itself requires further blasting to create a location perched atop a steep outcropping.
e. As to Lot 7, 160 feet of retaining wall is required to allow the driveway to gain access to the house site which is located part way up a slope.
27. Based upon the findings stated in Paragraph 25, the Commission cannot make the findings required by Subdivision Regulations Section 3.3.6.
28. Subdivision Regulations Section 3.3.6 provides that
“3.3.6 … In granting permission to develop these areas, the Commission may require replatting of lots to increase their area, increase reservations of deeded open space and/or easements and may establish special restricted areas or special use limitations.”
29. Given the extensive history of development of this subdivision and subsequent resubdivisions, and the approach taken by the Applicant to develop the portions of the site which did not require extensive alterations to the topography first, the Commission finds that the Property is essentially the highly marginal portions of the entire site which require extensive site development measures to render them capable of supporting homes and septic systems.
30. Accordingly, based upon the findings above, the Commission declines to exercise the provisions of Subdivision Regulations Section 3.3.6 and instead leaves it to the Applicant to address these concerns and, if the Applicant so desires, submit a new application to develop the Property with less impact on the topography of the site, so that it may conform with the requirements of Regulations Sections 3.3.1, 3.3.2 and 3.3.3.
REASONS FOR DECISION
Based on the evidence and testimony presented during the public hearings, and based on the foregoing Findings, Application No. 523 is hereby denied for the following reasons:
1. None of the proposed lots own in fee simple a minimum of fifty feet of contiguous frontage along a State, Town or proposed subdivision road, and as such, the Application does not comply with Subdivision Regulations Section 4.1.7.
2. The Property cannot be developed as proposed without an adverse impact to health, safety, the indigenous character of the land or the resources of the area, and as such, the Application does not comply with Subdivision Regulations Section 3.3.1, et seq.