It was soon apparent on December 3 that the members of the Mattapoisett Planning Board were not in agreement on what had previously been decided as an acceptable surety for the controversial Snow Field Estates subdivision when engineer David Davignon, flanked by Attorney John Mathieu, stepped forward.
The agenda for the evening’s meeting listed the project as “Sign Form C and Decision for Definitive Subdivision Plan”, but as Davignon began to discuss the documents needing the board’s positive vote, board member Janice Robbins asked what the surety would be. That immediately prompted Mathieu to defend his client’s right to use the two lots of the subdivision as surety for the driveway covenant, not a cash sum.
“I’m at a loss to understand why a surety and not just the two lots being held [is acceptable],” he said. “Holding the lots, that should be sufficient. If that is chosen, then there is no surety necessary.”
But Robbins insisted that the Planning Board could impose a cash surety as well as holding the two lots.
“The Planning Board can impose a condition,” said Robbins. She said that if lots were held as the sole guarantee that a developer would complete the work, then no developer would ante up cash.
Mathieu countered that developers use lots in lieu of cash so that the monies can be used to fund construction. Mathieu also stated that his client did not have legal representation during earlier Planning Board hearings and thus didn’t understand what he was agreeing to when cash surety had been previously discussed.
There ensued discussion of the intent of the state statutes with regard to language that seemed to allow Planning Boards to hold lots and request cash sureties, with Robbins saying that the statute would not have options if it were otherwise.
From there, Robbins and Mathieu sparred over whether or not the Planning Board had jurisdiction over certain wetlands-related aspects of the project as Robbins asserted that the sensitivity of the project that traverses a large wetland area made it necessary for the Planning Board to ensure the project was completed – in this case, the driveway.
“He may not build this right away,” said Mathieu. “I don’t believe you can reject a plan. … You’re either holding all the lots or you’re asking for surety. … He’s offering the lots.”
Robbins replied, “You’re saying the Planning Board has no choice. … It’s a matter of performance. … The surety is what’s going to get it done.”
Chairman Tom Tucker reminded all that the roadway in question was not a road at all but a driveway and, as such, the Planning Board did not have authority over its construction, with Mathieu adding, “You can’t go in and finish the road. … You’re holding the lots … [and] you have no jurisdiction over wetlands.”
But Robbins was steadfast in that, absent a cash surety, the driveway may not be completed and might negatively alter the wetlands and never get done.
“He can mess things up royally,” Robbins said.
Davignon said that various state agencies were involved in the wetlands aspects of the project and maintained that the Town’s own counsel had confirmed that the developer could elect either to have the lots held pending driveway completion or provide a cash surety, but not both.
“We’ve been working on this project for well over a year,” Davignon stated. “Abutters were doing everything to stop it. … Now, at the last minute, we are being thrown into a corner.”
Planning Board member Nathan Ketchell said that the Massachusetts Department of Environmental Protection (DEP) was involved, an oversight agency he believed would hold the developer accountable. Davignon concurred.
“The DEP has tens of thousands of dollars, they have a staff and the funds,” said Davignon. “You have to follow the plan. … To do otherwise would be suicide.” Davignon told Robbins, “When it comes to wetlands crossings you are overstepping your jurisdiction.”
In the end, the covenant language was amended to reflect that the lots would be used as the sole surety for the building of the driveway in a favorable vote of 4-1.
In other business, the Planning Board received an email from Prime Engineering representing Scott Snow’s application for a Form C Definitive Subdivision Plan for a project located off Prospect Road known as Eldridge Estates. The email requested a continuance until December 17. But Ketchell took exception to the email that he contented seemed more like a statement of fact versus a request.
Ketchell, along with the other board members, speculated as to why the applicant, who first came before the board months earlier with a conceptual idea for the property, had failed so far to produce a real plan. The conversation centered on the number of lots being considered, but in the absence of a representative to clarify matters or supporting documents, the board was left at a loss to know how to move forward. Ketchell believed the applicant needed to start over with a new filing.
Tucker suggested and all agreed that the applicant’s email for a continuance could be granted, but that Snow needed to appear at the December 17 meeting to update the board.
In other matters, the board members sliced up a draft for new section for Sub-division Rules and Regulations with a plan to revisit the editing process at a future meeting. Planning Board Administrator Mary Crain said that the draft document had been modeled after the one currently being used by the Town of Rochester, her former employer, and had been thoroughly vetted by that town’s peer review consultant Ken Motta of Field Engineering. Robbins asked if Mattapoisett would use its own peer review personnel, which was confirmed along with the need for public hearings.
The next meeting of the Mattapoisett Planning Board is scheduled for December 17 at 7:00 pm in the Town Hall conference room.
Mattapoisett Planning Board
By Marilou Newell