After another discussion as to whether to take a proposed zoning change at 78 Wareham Road to town meeting so that developer Henry DeJesus can build a 48-unit condo village intended to serve the needs of Marion’s aging community, the Marion Planning Board balked in its Monday night meeting.
The April 6 meeting, held via live video conference, was the Planning Board’s first since February 18 and its first since the threat of coronavirus had closed public offices and gatherings.
The board planned to convene with the intention of voting to support the application for a zoning change from a Residence D designation limiting the property to two-acre, single-family units to Residence E, allowing two units per acre. Approval at town meeting would transform the 29-acre property from being only be able to fit approximately 15 units to one able to fit as many as 50 units or, should the project include single-bedroom units, more than 50.
To everyone’s apparent surprise, Town Counsel John Witten, who participated in the meeting by telephone, told the board that it is unlawful to attach a condition to a zoning change because it constitutes a quid pro quo and legally is no different than accepting cash from a developer to make a zoning change.
As an alternative, Witten proposed a deed restriction in escrow so that the zoning change proposal could be brought to town meeting for citizen approval and, at the same time, provide the town a sense of confidence in the project being built as proposed.
Witten explained that the zoning change would be effective upon passage, then the applicant would seek approval for the project and, if approved, that would trigger the release of the deed restriction.
“The devil is in the details, but I have no doubt we can work it out,” Witten said.
Members of the Planning Board weren’t so sure.
Until Monday’s meeting, the board had not been supportive of the scenario in which the proposed deed restriction would be lifted.
Board of Selectman member John Waterman, who attended the online meeting, asked, “What if the project is not approved… so the deed is not released from escrow but the zoning change has gone through? It’s leaving us exposed on that basis. (The developer) could come along with a totally different project that the board doesn’t want to approve and he’s got his zoning change.”
The concern is a Residence E zoning designation would technically open the door for a project of significantly higher density than what Marion wants to see.
Witten acknowledged Waterman’s point, adding, “The other possibility… once the zoning is changed, the land could be sold to a third party. That is the risk of negotiating a zoning change… (that’s) why there’s a law.”
Members of the board also objected to the town’s lack of protection, but Witten stated repeatedly that neither the Planning Board nor town meeting can enforce such an outcome. All they can do is approve or reject a zoning change, but a zoning change could come back to haunt the town should DeJesus sell his property rather than develop it.
Patricia McArdle, the developer’s attorney, was on the call and said she was “flabbergasted” at the emerging skepticism, citing her client’s multiple gestures of goodwill.
“I probably sound like a broken record at this point, but DeJesus is pushing hard into this,” said McArdle, noting the developer’s hire of Marion-based T2 Architecture and money spent pushing the project forward based on a 50-unit limit.
Board member Christopher Collings brought up the situation that the town is in after a zoning change was granted to developer Sherman Briggs, whose 28-unit proposal was withdrawn in favor of a 42-unit project, calling it “a perfect example of what John Waterman is saying. My vote for the zoning change at the time was based on his project being in line with Marion’s Master Plan goals.”
Vice Chairperson Andrew Daniel said he was “steaming” after unwittingly helping that happen by standing up in town meeting to support the zoning change that paved the path for Briggs’ change of plans. “I fell in love with the project that Mr. DeJesus (proposed)… as much as I want that project – and I really do – I’m feeling a little betrayed right now and wouldn’t want to stick my neck out again.”
Board member Norm Hills said, “The second condition to come up in this meeting is not acceptable because we’re just going to get ourselves into another problem here.”
Board member Eileen Marum called the new conditions “rather eye-opening”.
“The town has been betrayed by Mr. Briggs… I have misgivings now approving this particular project after listening. I think we should give this very careful consideration, and it may be best to leave this zoning the way it is.”
Board member Joe Rocha said, “Things are different since we had that (prior) meeting. (DeJesus) looked us in the eye and said, “two (units) per acre. That’s what I want to do, but that’s a big leap of faith.”
Witten reminded McArdle that good faith exists between DeJesus and the Planning Board, but that it’s important the town protect itself against scenarios even DeJesus himself may not be able to control amidst the economic instability brought about by the coronavirus pandemic.
“Town meeting never approves a project; they approve a zoning change, but, as Mr. Waterman says, that could also be someone else’s project,” explained Witten. “You cannot fashion a project at town meeting, just a zoning change. If town meeting can’t do that, don’t grant the zoning change.
“The only way around that is the restriction, that the owner is nervous about. That… is a problem.”
McArdle argued that Title 5 will limit the property all by itself.
“It’s 48 units. Once you cap off, it becomes extraordinarily expensive to get to the next type of unit. It is a self-limiting project unless he does one-bedroom units,” she said. “If we can’t move forward on this, he’s just going to sell it to somebody else.”
McArdle said she did not mean that statement to sound like a threat, but stated it as a fact of the options DeJesus was considering.
Noting the estimated $270,000 the town would have to gain in property taxes plus the excise tax revenue that residents’ vehicles would generate, Daniel said, “We have to be careful if we fight that kind of benefit to the town.”
Witten told Planning Board Chairman Will Saltonstall that DeJesus’ property could theoretically be purchased and annexed.
Witten recommended a new provision or the amendment of an old one to promise or commit to limit density so McArdle could give her client some comfort level and give the town the confidence it seeks. It would need a zoning change to the district and a zoning change to the bylaw, Witten said.
“We don’t want to do more than we need to… but we could consider a bylaw change… that would give the potential applicant an ability to develop a project,” he said.
Citing the timeline before the warrant needs to be ready for the printer for town meeting, Hills said the town does not have the necessary time to do something like that.
Saltonstall said the meeting was held so that, if the zoning change gained the board’s approval, Town Administrator Jay McGrail would have it in time to include in the warrant for town meeting.
Waterman said the Board of Selectmen was scheduled to vote in its Thursday, April 9, meeting on a postponement of town meeting. (McGrail told the Board of Selectmen on Tuesday that he will recommend postponement to an undetermined date no later than June 30 but with 20 days’ notice.)
The June town meeting is expected only to function to establish the budget for Fiscal Year 2021. Waterman expects, in the event of a town meeting postponed until June, that McGrail will have more time to prepare the warrant for printing.
Saltonstall asked McArdle to confer with DeJesus, then they would work to get inside the deadline. “Patricia, we’re all on the same page;” he told her. “(We’re) just trying to do our jobs here and would be willing to expedite a special meeting to get it on the warrant.”
McArdle accepted Saltonstall’s overture, saying, “I would like (DeJesus) to hear all of this. If there is a way for us to think creatively… so it’s win-win for everybody, I would like this opportunity. I’m sure he would, too.”
Collings said, “I think we just got a bad taste of what happens when it goes sour… I want to see something cool happen here.”
Marum agreed: “It would be great to see this project go forward… My greater concern is for the seniors who want to downsize, move into condos, be part of an association, be surrounded by their friends, loved ones, community members, I would feel more comfortable if we could get some assurances.”
“It’s a lot of details, but I don’t want Mr. DeJesus to lose faith,” Saltonstall told McArdle. “He has to understand what we’re going through. Please convey that to him…”
Saltonstall also asked the Planning Board to go easy on Briggs, asking members “don’t jump down that one’s throat until you know a little more.”
No date was set for the next Planning Board meeting.
Marion Planning Board
By Mick Colageo