Meeting Minutes

A meeting of the Planning Board was held on Monday, August 6, 2018 at 7:00 p.m. in the Maney Meeting Room at Town Hall. Present: Chairman Brian Charville, Vice-chairman Michael Sheehan, Clerk Charlie Wills, Katherine Flaws, and John Gioioso. Chairman Charville called the public meeting to order at 7:01 PM and announced it was being recorded. He announced that the first order of business was an item not on the agenda.

1. ANR Plan – 23-25 Pillings Pond Road

Engineer Jack Sullivan of the Sullivan Engineering Group informed the Planning Board (PB) that this plan involves the transfer of a small parcel (2000 sq. ft.) of land from #25 to #23. The owner of #23 seeks to add this parcel that is adjacent to her driveway so that she will own up to the top of a small hill that appears to be part of her land. This will create a use easement, but both lots will still be conforming as the 120’ lot width remains intact. The land is registered, and Land Court has approved the transfer. Mr. Gioioso asked if the land had already been purchased; Mr. Sullivan said there is a commitment in place. Chairman Charville asked about the “easement access” on the plan. Mr. Wills explained that originally, both homes shared a driveway, and after a lengthy court case, #25 added their own driveway. Mr. Wills noted that the application was only signed by the owner of #25; Mr. Sullivan said that #25 was the only parcel in question. Ms. Flaws agreed that #23 does not have to sign as the application only requests a transfer from #25, and that Land Court could approve the rest. Ms. Flaws motioned to endorse the ANR as presented and Mr. Wills seconded it; the motion was approved 5 – 0.

2. Continuation - 160 Moulton Drive (Bali Hai) – Board of Appeals case #18-18

Atty. Ted Regnante recapped the 3 items the PB requested clarification on at their previous meeting.

1. Fire Department (FD) letter of recommendation from Lt. Ripley:

Atty. Regnante said the key issue was the placement and accessibility of the ladder truck to the proposed apartment building, and this had been resolved by moving the parking lot 20’ closer to the building than in the original plan. Chairman Charville asked if this was the only change to the site plan versus what the PB previously was presented; Peter Ogren of Hayes Engineering said that in order to move the parking closer to the building, 20’ of landscaping had been moved to the side of the lot. Mr. Gioioso asked if this was the only report from the FD; Atty. Regnante said yes, and that the FD voiced “no opposition” to the plan if the listed conditions were met. Chairman Charville asked if this feedback had been given prior to the PB meeting on July 25; Atty. Regnante said no. Chairman Charville asked if any further revisions were expected; Mr. Ogren said no, other than the addition of a few hydrants.

2. Drainage recommendation report from Town Engineer Charlie Richter:

          Mr. Ogren said Mr. Richter was in agreement with the proposal as the increased perviousness reduces runoff. Mr. Richter has requested a peer review of the drainage to determine the best infiltration system. Chairman Charville asked for the square footage of the building; Mr. Ogren said the footprint is 14,000 sq. ft. and the total building is 42,000 sq. ft. Chairman Charville asked if the site plan showed the 400’ distance to the wetland; Mr. Ogren answered yes and that the wetland here is also the reservoir.

3. Special Permit – Does the ZBA have the authority to issue this instead of the project requiring a variance as Atty. Patrick Curley stated? :

Atty. Regnante said Atty. Jesse Schomer of Atty. Regnante’s office had drafted the legal work for this and that, yes, the ZBA has this authority if they find that the proposal is not more detrimental to the neighborhood than the existing nonconforming use. He added that a variance is not required as the new structure is in compliance with all existing dimensional requirements. Atty. Regnante said that Town Counsel (TC), Atty. Tom Mullen, had been asked to advise on this matter. Atty. Mullen’s letter stated that if local Zoning Bylaw permits, then the ZBA does have the authority to issue the special permit allowing the change from one nonconforming use to another. Atty. Regnante said that with regards to the variance, TC agrees no variance is required and he cites the Harrison case to support this.

Mr. Gioioso asked if the undersized Oak Street drainage system would be improved as part of building an apartment building on the subject site; Mr. Ogren said no, it is fairly new and that was not the intent in Mr. Richter’s recommendation. Mr. Gioioso asked who would pay if a change were to be made; Ms. Flaws said this issue will be addressed during the peer review of the infiltration plans. Atty. Regnante reviewed the factors and supporting cases cited by Atty. Schomer that make the proposed use less detrimental than the existing use; these can be found in his 8/3/2018 letter to the PB. Chairman Charville asked what the current tax revenues are; Mr. Palumbo answered $27K, and the proposed building’s taxes would be $88K, estimated. Chairman Charville asked if any additional updates to the site plan had been made since the prior meeting; Atty Regnante said no.

Chairman Charville opened the questions to the audience. Locksley Road resident Cynthia Trefry asked if the FD wanted access from 4 sides of the building; Atty. Regnante said no. Locksley Road resident Bill Sampson asked if there will be new curb cuts on Oak Street; Mr. Ogren said only for the Little League parking lot.

3. Public Comments

Locksley Road resident Atty. Patrick Curley submitted a more extensive legal brief and a letter from Hunting Lane resident Neil Weisenfeld. Atty. Curley said he respectfully disagrees with TC that a variance is not needed, and suggested this plan be brought to Town Meeting (TM). He cited the Cox v. BOA case that violated the town of Carver Bylaws. As evidence that the proposal is a more detrimental use, Atty. Curley said that “actual use” (as stated in the Bylaw) must be considered, not the false comparison of a “fully used restaurant”. Chairman Charville noted the apartment building may not be fully leased at times. Ms. Flaws stated the Zoning Bylaws reads “existing use”. Atty. Curley said the PB and TC must draft a correct definition of “neighborhood” and consider that the whole town uses Newhall Park; he added that the increase in tax revenue would not even cover the cost of additional students at Huckleberry Hill School. Atty. Curley expressed concern about traffic, safety, parking, impact on schools, and the increased burden on emergency responders due to 24 hour use. Ms. Flaws felt the estimate of 9 additional students was correct. Mr. Wills said the plan was not a tax gain for the town. Chairman Charville asked what the annual cost per pupil is; School Committee member Rich Sjoberg was in the audience and said $12,000 – $13,000. Locksley Road resident Atty. Bradford Keene said the proposal is the equivalent of spot zoning and questioned whether an environmental impact study would be done. He noted that Suntaug Lake is a reservoir as well as a habitat for wildlife and vegetation, including federally protected bald eagles. Atty. Keene felt that the EPA and the City of Peabody should be contacted, and the proposal should be dealt with at TM. He also reminded the group that when Pillings Pond was dredged, the EPA shut the project down which resulted in a lengthy lawsuit. Atty. Keene stated that the Bali Hai has “abandoned” its use as a restaurant, the proposal does not provide comprehensive answers, and the community must weigh in at TM. He recommended that the PB not endorse this plan.

Locksley Road resident Arthur Bourque submitted a letter to the PB. He reminded the PB of their role as “stewards” of our town’s Zoning Bylaws. Mr. Bourque said that long term issues with 40B had been resolved with Arborpoint at Market Street, and that the addition of these new “doors” would add to Lynnfield’s M.G.L. chapter 40B burden. Mr. Bourque listed additional concerns, including: a realistic traffic study should be done on a Saturday in spring, this is a commercial (not residential) building, unrealistic high rents, increased police calls, the large impact on Newhall Park, and the greatly increased building size.

Mrs. Trefry said she has expressed concern about the project’s impact on school and special education services at prior meetings, and that School Committee Chairman Hayman thought the projected addition of 9 students was low. She gave the PB a recap of District Special Education Services showing that Lynnfield Special Education services and out of district placements are higher than the state average. There are currently 24 out of district placements at an average cost of $61K each.

Atty. Schomer spoke to address the legal questions. He said this matter had been addressed at prior Town Meetings in 1954 and 2017 when the Zoning Bylaws were changed to give the ZBA the power to approve such a plan, from one nonconforming use to another. Atty. Schomer added that if this plan fails, the property will become another restaurant. He added that all studies submitted showed proposed conditions at maximum use times.

Ms. Flaws asked if the developer would consider making some of the units affordable pursuant to chapter 40B in order to have all 32 units count towards Lynnfield’s total. Atty. Schomer said 1 unit is designated as a veteran’s unit; Atty. Regnante said that 64 additional 40B units are being constructed at 2 Broadway.Chairman Charville asked Atty. Schomer if it was the 1954 Zoning Bylaws that were amended last fall; Atty. Schomer said yes, and the language was slightly changed but the meanings remained the same. Moulton Drive resident Barbara Auterio said the developers owned the Stonewood Tavern in Peabody and had modified their plan after approval. Chairman Charville said this was not germane to the current issue. Mrs. Auterio said their property management company in Malden had poor reviews and their tenants had submitted complaints to the Board of Health. Developer Matthew Palumbo replied that Stonewood was owned by his father, and the complaints cited were from 2012 – 2016, before he was the property manager. Mr. Palumbo added that the Bali Hai is an eyesore and that their plan was to build a property they would manage themselves, not “flip”. Mr. Palumbo said they decided to build luxury apartments vs. 40B units to minimize school impact. Mr. Gioioso asked if there would be on-site security; Mr. Palumbo said they would install surveillance cameras. Moulton Drive resident Anthony Auterio said Lynnfield is a bedroom community and single-family homes should be built; if high-density apartments are allowed, then the area must be rezoned. He added that Moulton Drive is already quite narrow for 2 car travel. Locksley Road resident David Trefry said this plan is a commercial enterprise and a completely different and not less detrimental use to the neighborhood. He stressed that any proposal should be single-family homes or condos, and that a variance and full TM vote should be required. Oak Street Resident Drew Taylor said the project would be an improvement to the area and that Little League (LL) full-time play is only 6 – 8 weeks per year. Mr. Taylor asked Mr. Palumbo about his prior agreement with Mr. Taylor to move the egress for the LL parking lot and why it was not displayed on the revised plan. Mr. Palumbo said this would be done in steps, after ZBA approval. Mr. Taylor also expressed concern about the reality that approximately 100 new residents would likely have that many vehicles. Chairman Charville wondered where else on the lot the 16 LL space could go if the egress changed.

Chairman Charville asked Atty. Regnante and Atty. Schomer to recap their findings after reviewing the cases where a change of nonconforming use had been proposed. Atty. Regnante said no cases found a residential use to be more detrimental than a commercial use. Atty. Schomer cited the closest example to the current proposal as the Murray case (a hotel converted to apartments), which found in favor of building the proposed structure. Chairman Charville asked what action(s) the PB should take with regard to Zoning Bylaw 5.2. Atty. Regnante said the PB should make recommendations to the ZBA with regards to the technical points of the site plan. Mr. Sheehan said this is a difficult case due to the very different uses of the existing and proposed buildings. He added that the reality is that the current building will undergo a change, that the submission and proposal were well done, and that the ZBA will be charged with fact finding to determine if this is a more or less detrimental use. Mr. Wills cited the letter from Atty. Mullen, the Harrison case, and factors such as improved visual impact and scale. He noted that LIFE units at Center Village, which are garden apartments with a density of 12 units per acre and 1 parking space per unit, could be a model for this property that would result in 20 units, thereby eliminating some of the concerns. Mr. Wills noted that issues such as schools and traffic are not the jurisdiction of the PB. Chairman Charville stated that with regards to the application, the PB must give a recommendation on the issuance of a Special Permit allowing the change from one nonconforming use to another. Ms. Flaws said that after looking at the case law, she agrees with the applicant that this matter is within the jurisdiction of the ZBA to approve. Mr. Gioioso noted that while the ZBA “may, but need not approve”, the PB should still issue a recommendation to them. He added that he is concerned about the federally protected wildlife, the Peabody water supply, and whether an apartment building is a commercial or residential use. Chairman Charville noted the Bali Hai is an eyesore, the LL parking is an improvement, that Atty. Schomer’s casework was well done, and that he had thought this would be a clear cut case. He now thinks that when the Zoning Bylaws were adopted, this is not what the TM had in mind, and that citing a case where the use change was from gravel pit to landfill is a huge leap in comparison to the proposed project now before the PB, changing a restaurant to an apartment building. Ms. Flaws expressed concern about M.G.L. chapter 40B and how it may affect this proposal in 2020. Mr. Gioioso said this is a bigger issue than should be decided by the PB and ZBA, and the PB should recommend to the BOS that it go before TM. Chairman Charville said this is a fair point but the ZBA does have to act on the requested special permit and proposed site plan. Ms. Flaws said the ZBA can vote against the project, but they must file their decision within 90 days. Mr. Wills said the PB should stick to the letter of the law.

Chairman Charville requested a motion on the Special Permit. Mr. Wills moved that the PB voice no objection to the Special Permit; the motion did not receive a second. Mr. Gioioso moved that the PB acknowledge that this application does not require a variance, that the ZBA has the authority to grant a Special Permit, and that the PB does not recommend the ZBA grant the Special Permit. Mr. Sheehan seconded the motion. Chairman Charville noted that under Section 5.2, a majority of the PB must support the motion. Mr. Gioioso wanted to add a clear message to the ZBA that this matter be sent to the BOS for inclusion in TM, and motioned to do so. The motion did not receive a second. Chairman Charville then referred back to the motion that the PB recommend to the ZBA that it NOT grant a Special Permit to allow the change from one nonconforming use to another. The motion carried 3 – 2, with Chairman Charville, Mr. Sheehan and Mr. Gioioso voting in favor and Mr. Wills and Ms. Flaws voting against.

The PB then discussed giving feedback on the revised site plan, with a majority of the Board deciding feedback was appropriate. Chairman Charville motioned to give the ZBA feedback on the site plan; Ms. Flaws seconded and the motion carried 4 – 1, with Mr. Gioioso voting against. Chairman Charville motioned that the PB recommend that the ZBA approve the site plan if the applicants 1) resolve the drainage issues raised by the DPW, and 2) resolve the location and curb cut of the LL parking lot. Mr. Wills seconded the motion, which carried 4 -1; Mr. Gioioso voted against. Chairman Charville thanked all who participated in the meeting.

Topics for next meeting

• Preliminary Plan – Road A new subdivision off Summer Street
• PB Facebook page
• Lahey / MarketStreet building 1350 parking layout – proposed site plan modification

Chairman Charville motioned to adjourn the meeting at 10:15 PM; Ms. Flaws seconded. The motion carried 5 – 0.

          Respectfully submitted,

          Susan Lambe, Planning Office