Subdivision Bylaw Ambiguity Raises Concerns

On June 4 after welcoming Arlene Fidalgo, the newly elected member to the Mattapoisett Planning Board, Chairman Tom Tucker then thanked the other members for their service during his five-month work-related absence.

Then it was on to an agenda that contained two highly controversial filings – a multi-lot subdivision proposed on Chapel Road and a two-lot subdivision proposed off Snow Field Road.

Represented on this night by Bob Rogers of G.A.F. Engineering, the Chapel Road project roused concerns and emotions.

Before discussion began, Rogers said the client had no specific design at this point in time but rather sought clarification on whether or not the project would need to be constructed using an ANR (approval not required), or could a special residential district (SRD) or cluster housing plan be forwarded.

During previous discussions on this project, neither the applicant’s representative nor the Planning Board were sure if the parcel qualified for SRD consideration since there was the possibility of conforming lots under an ANR. Stakeholders found the bylaw to be unclear during these discussions.

Tucker read an opinion rendered by Town Counsel Jonathan Silverstein on whether or not the Planning Board had authority to view the project through either filter. To summarize Silverstein’s multi-page opinion, they did. Silverstein also referred to the SRD concept, which included cluster housing on dry portions of the parcel with open spaces and wetlands primarily left undisturbed as “creative land use.”

But Planning Board member Janice Robbins took exception to that and asked, “Is this the threshold?”

“[Town Counsel] acknowledges there is ambiguity in our bylaw,” she said. Robbins then said they needed to clear up any ambiguity in the bylaw before proceeding any further. “We have a lot of discretion if we come down on the right side of the ambiguity…” Otherwise, she believed there could be a lawsuit against the Planning Board. “A lawyer’s opinion is just that, an opinion,” said Robbins, and nothing more. She also said that where an ambiguity exists, “Ambiguity is construed against the draftsman…” – in this case, the Planning Board.

Abutters were adamant             that any residential development on the property would add to traffic problems they already experience with high volume and high rates of speed.

Resident Paul Osenkowski said he was in favor of a cluster-housing plan because it preserved wetlands and a vernal pool located on the parcel.

Robbins still felt talking about any project type was premature, that the bylaw issue needed rewriting first and foremost.

A straw poll revealed members Karen Field, Nathan Ketchel, and Tucker himself were in favor of accepting town counsel’s opinion as written, while Robbins and Fidalgo thought the bylaw should be corrected.

Next up was the Snow Field Road two-lot subdivision discussion.

Speaking on behalf of his client David Arsenault, David Davignon of N. Douglas Schneider & Associates, Inc. outlined the scope of the Snow Field project for Fidalgo’s benefit.

Davignon said the Conservation Commission’s conditions included culverts, wetlands mitigations and remediation, and stormwater swales for the cul-de-sac that would provide the two-lot subdivision with frontage. But a group of abutters have appealed the ConCom’s decision to the Massachusetts Department of Environmental Protection.

Before sharing with the Planning Board what the DEP had found and requested of the applicant, Davignon said that the U.S. Army Corps of Engineers had weighed in on the project and that it had also undergone a review by the Massachusetts Office of Environmental Policy Act. Conclusions from those agencies were not discussed.

Davignon listed the waivers his client is requesting, included eliminating sidewalks and the acceptance of the length of a dead end road. The original design concept included an 80-foot cul-de-sac surrounded by a bio-filter for stormwater runoff, and a 16-foot wide private driveway from the road to the two lots in the uplands of the parcel reached by a 900-foot long private driveway.

Tucker told Davignon the board would be requesting a peer review consultant saying, “This is really crossing some serious wetlands.”

Davignon asked that stormwater flow calculations not be part of any future peer review since his client had already paid for such reports to be produced twice. However, Tucker felt it was important to include an independent assessment of those reports for the Planning Board.

Ketchel asked if soils under the proposed private driveway had been studied. Davignon replied, “No.”

Robbins questioned the trust agreement that was included in the submittal package. “The declaration of trust has to be approved by the Board of Selectmen,” she pointed out. “If there is a demand made, the Board of Selectmen has the responsibility…. It’s the Board of Selectmen who are tasked with making it work,” she said, wondering why that aspect of the project had been removed from the Planning Board’s purview. Davignon alluded to that language being pulled in from previous applications.

Abutter Karen Markowski wanted the board to understand that, “…The appeal is a big deal and shouldn’t be downplayed…” Tucker responded that the board does have concerns. Markowski added that a group of abutters had hired an independent engineer to assist them in the appeal process. She then presented a letter from that engineer to the board. It was not read into the minutes.

Davignon said the DEP asked for alternate designs that would have less of an impact on the surrounding wetlands known as Haskell’s Swamp. He then provided two new designs that eliminated the cul-de-sac except on paper and increased a hammerhead turn-around in front of the two lots. “We have neighbors who don’t support anything…. We are trying to find middle ground,” he told the board members. He said the newer design concepts decreased wetland impact by 60 percent.

Highway Superintendent Barry Denham said he opposes paper cul-de-sacs for frontage purposes, adding, “They ask for cul-de-sacs and then don’t build them…. Why do you allow them to use the cul-de-sacs for frontage?” he asked. There was no immediate response offered.

The discussion continued for an hour with the board focused primarily on water displacement into neighboring properties and wetlands impact.

Resident Brad Hathaway asked the board what had become of the Conservation Commission’s decision. Tucker told him it was being appealed to the DEP. Then Hathaway asked, “Is the board aware, especially the new member, that an ethics commission complaint as of last year against the chairman of the Conservation Commission had been filed?”

Tucker responded that they weren’t going to go into that. Hathaway fired back, “I asked if you were aware!” Tucker said he was. Fidalgo said, “I am now.” The hearing was continued until June 18.

The next meeting of the Mattapoisett Planning Board is scheduled for June 18at 7:00 pm in the Town Hall conference room.

Mattapoisett Planning Board

By Marilou Newell


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