The Heron Cove Estates, LLC 40B housing project proposed for Wareham Road took a significant step forward during a continued public hearing with the Marion Zoning Board of Appeals on July 14 at the Marion Police station. A Local Initiative Program (LIP) 670CMR negotiated with and approved by the Select Board, the proposal has been under the Marion-contracted peer review of Peter Palmieri.
Representing developer Ken Steen, Phil Cordeiro of Allen & Major Associates said he enjoyed working with Palmieri and believes that Steen has addressed the peer-review concerns brought to the ZBA by Palmieri. Cordeiro said closure was achieved with the traffic consultant and other questions and concerns related to the site plan.
Given the floor while attending via Zoom, Palmieri told the ZBA that he reviewed Steen’s latest revisions and soil-testing samples and said the plans were professionally done. He commended the design engineer for being responsive to peer review’s concerns and comments. From a technical standpoint, Palmieri said all concerns have been addressed.
“The only concern – and I just want the board to have a clear picture of this – is the height of the retaining wall in the southwest corner of the project site, which is right on the property line. The wall varies in height from 11.8 feet to 9.7 feet, and then on top of that is a 5-foot fence,” said Palmieri. “I guess I was having a little bit of a hard time visualizing how that would look. Phil may be able to add some additional information on that, but again, as far as the technical components of the submittal, all of our comments have been satisfactorily addressed.”
Cordeiro confirmed Palmieri’s data but said he could not provide examples of the fence on the spot, telling the ZBA that the next step is putting together the design for that area. He said he could coordinate back to the ZBA through Building Commissioner Bob Grillo.
“What it amounts to is the (retaining) wall height is generally even at the top; the underlying terrain moves, and it reveals more of the wall, but on top of the wall would be that (5 foot) fence,” explained Cordeiro.
Steen took the podium to clarify the wall for the board.
Using the wall behind the Brew Fish restaurant parking lot as a point of reference, Steen said, “This wall will be remarkably similar to that wall in terms of how it looks.” He said the wall behind Brew Fish is in some spots higher than the one to be installed at Heron Cove. The same materials and construction will be used, he said.
When ZBA Chairperson Cynthia Callow opened the floor for questions from the board members, Tucker Burr asked for clarification on Palmieri’s letter to the ZBA saying he could not find any examples of what the site plan showed him. Burr asked if Palmieri meant he had not seen examples on retaining walls built on property lines or “so close to water-management structures.”
“It was primarily the height of the wall on the property line and that wall retaining the subsurface infiltration systems – again, right next to the property line,” explained Palmieri. “I have seen systems that do have retaining walls, and they seem to work fine. Again, I do not have a concern about the technical or the engineering component of it. I guess it’s just I haven’t seen one right on a property line, right next to an abutter’s property that isn’t somehow shielded or there’s some aesthetic treatment done.”
The retaining wall is believed to be over 100-feet long.
Palmieri said he could not determine exactly where the abutter’s house was situated on that adjacent lot. If the wall is considered a structure, then does it have to comply with the ZBA’s setback requirements, Palmieri asked. Burr estimated the distance of the house from the property line to be no more than 15 feet. “At this point,” Palmieri said, “it really is the visual impact.”
Cordeiro said he and Steen could take the retaining wall away from the property line far enough to soften the abutters’ view with some plantings, as it was already planned for lower parts of the wall. “The reason it is so tight presently is a fire-access road required by the Fire Department is there,” said Cordeiro.
Grillo told the ZBA that the bylaw is vague as to whether the retaining wall should be deemed a structure. “It’s an odd thing because it certainly looks like a structure under the definition, although it’s not spelled out, but one of the odd things about it is that retaining walls a lot of times are put within the setbacks specifically to change grades,” he explained. “I would have to take a look at historical precedence on this before I would want to make a decision on it because it doesn’t make sense that it would be considered a structure and have to meet the (required) setbacks.”
ZBA member Dr. Ed Hoffer alluded to Fieldstone Lane residents being unhappy with their view, describing their experience as looking out at a construction site. “Having a more-appealing vista would add confidence,” he said.
Grillo said that even if the retaining wall is considered a structure, the ZBA has the authority to waive the setback requirements, conditioning the project with plantings. Burr was less than confident shrubs could adequately screen the retaining wall.
While acknowledging that erosion control does not fall under ZBA purview, Callow asked Town Counsel Jon Witten if the ZBA could ask its consultant for advice on such matters for the purposes of vetting the 40B project.
“It’s certainly within the board’s scope,” said Witten, agreeing with Palmieri. “You have overall superintendency of health and safety issues and stormwater management. Stormwater control is certainly part of it, so the answer is yes.”
Witten differed with Grillo’s viewpoint on the retaining wall while acknowledging the ZBA could grant a waiver. But he strongly advised that the board rely on Palmieri for guidance as to the safety and placement of the structure. Regarding the processing of waivers in general, Witten told Callow the ZBA could decide when to take them up.
Attorney Mark Bobrowski, representing Steen, said he would have the waiver request list ready at the next hearing on August 11.
ZBA member Dana Nilson was prepared to motion that the board vote a conditional approval of all traffic and civil matters, but in light of Bobrowski’s plan to deliver waiver requests at the next hearing, he suggested the board wait for that before acting.
Bobrowski asked if the ZBA would like a presentation on landscaping and architecture.
More banter touched lightly on energy and design of the homes.
The board voted to continue the public hearing to August 11.
The ZBA approved a special permit for Bonnie Ellis and Craig Huntley to expand a nonconforming structure at 13 Wianno Road.
Presenting to the board on the one-year anniversary of her residency with Huntley in Marion, Ellis explained their desire to move across the street from her “tiny, two-bedroom ranch.” She said the family has a grandchild with another on the way. The opportunity to buy land across the street from their 8 Wianno Road home came up during the winter.
The proposal calls for the addition of a second floor to the single-story home at 13 Wianno Road to house visiting children and their families, while also creating much-needed storage space.
Nilson said the new footprint will be no more nonconforming than the current side setbacks. He identified the issues under ZBA purview as the front setback. Marion’s bylaw requires a 15-foot side setback, but that will not be required in the expansion planned to extend 10-feet deeper to the back and 2 feet, 10 inches closer to the street, but no wider than the existing footprint.
Abutter Augusta Rosenthal, who lives directly across the street, said she needs “to see exactly what they’re going to do with it.” Resident Barry Gaffey, 22 Converse Road, considers the current structure “an eyesore” and said he is fully in favor of an expansion project.
Varut Phimolmas sent the ZBA a letter of withdrawal of his application for a special permit to put a change of use from retail to a restaurant at 290 Front Street. Phimolmas said in the July 11 letter, as read by ZBA Chair Cynthia Callow, that the move would cause problems for the neighbors. He expressed gratitude toward the ZBA and town officials and indicated his intentions to move his family back to the restaurant’s original location at 374 Front Street. The board voted to accept the withdrawal of the application without prejudice.
The ZBA briefly discussed the case of Marion Village Estates coming up on Thursday, July 28. Board administrator Anne Marie Tobia said the meeting is a matter of peer review of Fieldstone Lane.
The next meeting of the Marion ZBA will be held on Thursday, August 11, at 6:30 pm.
Marion Zoning Board of Appeals
By Mick Colageo