This Monday, Chair Don Morris told the Planning Board he found a decision by the Zoning Board of Appeals chair “extremely upsetting”. At issue was the ZBA closing of a public hearing without sharing a letter from the Town Planner.
Later, Morris referred to the ZBA’s vote to approve the Use Variance first and impose conditions later as making it “ripe for appeal”.
At the Planning Board’s meeting, Planner Jennifer Burney gave an update on her communication with the ZBA about the Use Variance at Park Central. She said her recommendations on the large-scale development project weren’t read into the ZBA’s record at their public hearing.
Burney explained that her letter was submitted the afternoon of the hearing. Later that evening, the ZBA closed the public hearing without reading the letter into the record.
According to Burney, Chair Leo Bartolini told her he rejected the document as not meeting his rule that documents be submitted 10 days in advance. Morris’ frustration was fueled by Bartolini’s acceptance of another letter that night, purportedly prepared after Burney’s. The other letter was from the attorney of abutting neighbors.
Morris was upset that Bartolini accepted the abutters’ letter but “pulled the ten day rule” on a department head.
Planning Board Member Jessie Stein asked Burney about Town Counsel’s role. She responded that he looked at the letter and advised Bartolini to read it into the record.
Morris was upset that the public wasn’t given a chance to comment on the letter at the public hearings:
It was extremely disappointing, especially for such a significant project. Hopefully, we won’t be going through this type of selective acceptance of documents in the future.
He also objected to the fact that residents didn’t get a chance to see abutters’ agreement and comment before the public hearing was closed. He referred to residents of Flagg Road who weren’t part of the group that met with the developer.
Burney’s letter asked the ZBA to consider conditions on the townhouse project that meet the Town’s updated Affordable Housing Plan. It also asked the board to meet with the Planning Board and possibly SHOPC to discuss it:
Conditions could include that goals of the Affordable Housing Plan are met and while I congratulate the developer for working with the abutters and agreeing to relocate the proposed 40B with the proposed single, duplex and triSplex units, the project could also allow for the creation of housing that offers a mix of housing choices by requiring that a portion of them be income restricted for low and moderate income households as well as units that are barrier-free and handicap accessible for our aging seniors as well as handicap individuals.
The Planning Board and Planning Department are requesting to meet with the Board of Appeals to discuss elements of the Affordable Housing Plan as it relates to possible mitigation. We could accommodate this meeting on the Planning Board agenda for June 8th, 2015. I would also suggest that the Board of Appeals consult with SHOPC to solicit their feedback.
I tried to find information on the ZBA’s 10 day rule on their website. Nothing is noted on the page or under their rules and regs. There is a 10 day materials deadline under Use Variance application instructions. However, it seems to apply to the applicant:
Ten (10) copies of any material (in addition to that included with the Application) that will be referred to by the Applicant (or the Applicant’s representatives) at any public hearing must be submitted to the Building Department at least 10 days prior to such hearing to ensure adequate and proper review by the Board and accessibility to the public. Any material submitted later than this deadline may, at the Board’s discretion, constitute a constructive request by the Applicant for a continuation of the hearing if, in the opinion of the Board, the Board, Town staff or the public have not had adequate time to appropriately consider such material. Applicants should note that this additional material includes amended plans, renderings, visual displays, models, etc., that may have been prepared after the Application was filed and are expected to be used by the Applicant during a public hearing presentation.
As for the requested conditions, Burney confirmed the ZBA could include them as their own. She furthered that the developer may opt to incorporate them. She sent Bill Depietri a copy of the letter.
The letter wasn’t the only issue the board has about ZBA’s handling of the development. Members were surprised by the ZBA’s decision to approve the Use Variance with conditions to be determined.
Morris went as far as saying it made the approval “ripe for appeal”.
Member Phil Jenks worried the ZBA could end up “taking authority from the Planning Board.” He said Depeitri is requesting more than a variance for residential development in a commercial zone. The applicant is also seeking ZBA approval to waive Major Residential Development requirements.
The developer’s attorney also asked the ZBA to do a major site plan review. The Planning Board’s subsequent Site Plan Review would then only cover items the ZBA didn’t determine.
According to Jenks, the authority on both the Major Residential requirements and the Major Site Plan Review belongs to the Planning Board. He advised both boards to meet with Town Counsel to determine the correct process.
Stein recommended submitting a letter to the ZBA on issues. But Morris pointed out that the letter wouldn’t be within 10 days.
The ZBA is scheduled to hold another meeting on the Park Central development this Wednesday.