Subdivision rules and regulations have a deeper history in our state than one might believe. As far back as 1891, the City of Boston drafted its first comprehensive subdivision control statute. During the early 1900s, additional regulations and rules were added, language modified, including but not limited to subdivision powers which were conferred to planning boards in 1936.

            The road to understanding and rendering fair decisions on matters of land subdivisions continues to pose questions in the 21^st century, in spite of decades of legal review and regulatory oversight.

            Thus, when the abutters, primarily property owners living on Oakland Way, asked questions regarding the Form A Approval Not Required subdivision for property owned by Laurel Henning, answers were not crystal clear. As noted in the ANR Mass.gov handbook, hundreds of legal challenges have shaped regulations over the years.

            On Monday night, the Mattapoisett Planning Board sought to add clarity where it could for the benefit of the abutters. Neither the applicant nor her representative, Bill Madden of G.A.F. Engineering, were present to address questions.

            Abutters’ major concern centered around ownership of the “way” described as a driveway with easement rights to all abutters.

            The posting of the application read, “Form A Approval Not Required Application for Map 8, Lots 70 & 72, applicant Laurel Henning, parcel B and Lot 70A on Oakland Way and Lot 72A on Foster Street.”

            Planning Board member John Mathieu provided some pertinent details regarding the private property held by Henning, the right-of-way easement and duties of care of the way, and a heavy suggestion that they establish a homeowners’ association. He told the residents it is important to understand the intentions of the owner in order to protect their use and maintenance of the way.

            Beyond that, Mathieu said that Henning could not usurp their free travel on the way, but, further, she also had no responsibility to maintain it. The land was privately held.

            The board moved to accept the one-lot subdivision plan as presented, noting to the abutters that the board had no responsibility regarding existing utilities that were also noted as privately held by each property owner.

            Another ANR was a bit more straightforward.

            Forms A and B Approval Not Required for property located on Ocean Drive with lots owned by brothers David and Joseph Duchaine was heard. Engineer Dave Davignon of Schneider, Davignon & Leone, Inc., explained that parcels A and B will not be considered building lots and that a new lot 16B will meet frontage once zoning approves the proposed roadway, making it a building lot.

            The application is pending Fire and Police Department acceptance for safety requirements. It was continued until the December 18 meeting.

            The next meeting of the Mattapoisett Planning Board is scheduled for Monday, December 18, at 7:00 pm.

Mattapoisett Planning Board

By Marilou Newell

There was division among the members of the Marion Zoning Board of Appeals after receiving a November 7 letter from Mark Bobrowski, developer Ken Steen’s attorney, seeking relief for his client from a previously agreed upon timeline stipulating that certain fees are due within 10 days of the issuance of the first building permit for the construction of Heron Cove Estates.

            At a prior meeting with Steen and Town Administrator Geoff Gorman, ZBA Chairperson Cynthia Callow asked Steen to verify his request that the town henceforth regard those timelines as insubstantial as opposed to substantial. Callow reported that Gorman was concerned that Steen was scheming to avoid paying sewer installation fees but believes the developer is merely looking to defer those payments.

            Callow read from Bobrowski’s letter, “We are not looking or expecting any of the fees to be waived. We will be paying the total amount of fees previously agreed to. (Those include) $590,000 for the (infiltration and inflow sewer-related treatment), $410,000 for (sewer) connection, and up to, not to exceed $110,000 as a contribution toward the replacement of the Creek Road (pump) station. We are simply requesting the timing of the payments be adjusted pursuant of the former requests.”

            Callow then turned to the ZBA membership, suggesting the involvement of Town Counsel. She suggested that with a tweak requiring that permit fees be waived until the beginning of the laying of a foundation, “I think everybody would be in agreement with that, and I think that we could go forward with the project.”

            Not everyone agreed.

            Tucker Burr articulated concern that Steen could put himself in a position to drag things out, but Callow reminded him that the ZBA set a five-year limit on construction, a year of which has been eaten up without any activity on the site.

            Burr thinks it could handcuff the town by releasing the leverages it presently has with the requirements of the agreement on payments 10 days after the issuance of permits.

            “I think that he has no intention of ever building the sewer. I think the only way that sewer line’s ever getting built is if Matt Zuker builds it,” said Burr.

            Callow did not hesitate to disagree. “Matt Zuker hasn’t done anything either,” she said.

            “I think what winds up happening is they get into a game of chicken, and it just never gets built,” said Burr. “I think they’re both going to be in this game of chicken, and what’s going to happen is Marion is going to end up with this 40B development that we’re going to be obligated to always support and have absolutely no strings to pull on. Then we’re going to eventually get below the 8% (affordable housing), we’re still going to be obligated to let him build it, and other people are going to be able to come in over the next five years and apply for a 40B.”

            The present agreement obligates the developer to install a sewer line to serve the project along the northern portion of Route 6, Wareham Road, to Hill Street. Said sewer line is to be designed and installed in accordance with all rules, regulations and policy as approved by the Marion Water & Sewer Commissioners (the Select Board.) Construction and installation is a condition precedent (antecedent) to the issuance of a building permit. (Callow noted that this condition was not part of the original agreement.)

            Within 10 days following the receipt of a single or combination of building permits, the applicant shall pay the town $590,000 for the town’s use for improving the I/I into the town’s wastewater treatment work.

            In the same time frame, the agreement obligates Steen to pay the town 10% of the bid cost to repair and replace the Creek Road Pump Station up to a maximum payment of $110,000, the same deemed a critical component of the town’s sewer system.

            In the same time frame, Steen is to pay the town $410,000 for connection to the town’s wastewater treatment work.

            Callow’s interpretation of Steen’s request is that he wanted to pull a building permit without being required to pay these fees within the next 10 days. “That’s my understanding,” she said.

            Callow stuck to her optimism that Steen intends to build his affordable-housing development.

            “I do not believe they are stalling tactics,” said Callow. “I think it has to do with economy, I think it has to do with he’s a businessman.” Callow acknowledged that Zuker’s delay most likely factors in Steen’s.

            Callow’s understanding of the overall plan is that Steen and Zuker are obligated to split the costs of sewer upgrades in keeping with their agreements with the town, but she feels as though, right when they should be meeting to work things out, they go away from each other.

            Callow told the membership that Gorman has granted her permission to discuss the matter directly with Town Counsel. She encouraged the board to submit questions.

            Citing past losses in legal battles with Steen over “substantial versus insubstantial” changes, Callow advised the board not to make that a battlefield for the town.

            “We’re treading on thin ice here, and we’re all trying to do the right thing by the town. I think he intends to build it, I just do. He’s never given me a reason (to doubt),” said Callow, emphasizing due diligence at this point. “That is my plan going forward.”

            Select Board member Randy Parker, in attendance, was given the floor, and said he has gone through the agreement “thoroughly” and discussed the issues with Gorman and Grillo.

            “I’m agreeable to it. I think it’s a cash-flow thing,” said Parker. “I think the price of money is expensive, and quite frankly for him to get going on this and spend all that money up front have to pay interest … is expensive. I find him to be sincere.”

            Parker admitted to prior confusion over the issue of Steen paying for permits but insisted the rest of the matter is about cashflow.

            Callow agreed.

            Grillo suggested tweaks to the latter to be submitted to legal counsel for feedback, stating that the permits shall be issued without any “initial fees.” He also suggested the addition of a sentence stipulating that “all building permit fees to be paid in full prior to the start of foundation for each individual unit.”

            Because Steen will have a separate building permit for each unit, Grillo said Steen should not have to pay for all the permits at once.

            In the end, all members present supported the action.

            After a continued public hearing, applicants Eric Winer and Nancy Borstelmann were voted a Special Permit allowing the extension of an existing, nonconforming, side-yard setback at 18 West Avenue.

            “What we’re doing is extending an existing nonconformity on the north, gable end of the structure,” said Representative Henry Bobeck, noting a detached garage with a living space.

            Callow thanked the applicants for agreeing to continue the case due to the lack of membership available to hear the case.

            The next meeting of the Marion Zoning Board of Appeals was not scheduled upon adjournment.

Marion Zoning Board of Appeals

By Mick Colageo