The Raynham Planning Board held a regular meeting on December 16, 2010, at Raynham Veterans' Memorial Town Hall.
Board members present: Daniel Andrade, Burke Fountain, Chris Gallagher, Russell Driscoll, Henry Ellis (6:10 p.m.
Staff present: Marilyn Whalley, Town Planner; Maureen McKenney, Administrative Assistant
6:08 p.m. Mr. Andrade opened the meeting. Roger's Way Extension matter was tabled.
General Business: Invoices were paid. Project review account for Jess Marie Estates is depleted. Mr. Andrade moved to request $1,500 from the developer for the account; second by Mr. Fountain; motion passed by unanimous vote (4).
Minutes of December 2, 2010 were received. Mr. Fountain moved to waive the reading and approve the minutes as submitted; second by Mr. Andrade; motion passed by unanimous vote (4).
6:10 p.m. Ryan Iron site plan: (Mr. Ellis arrived) Certificate of Action (COA) for the approved site plan was presented. Mr. Fountain moved to approve the COA for Ryan Iron as submitted on 12/16/10; second by Mr. Gallagher; motion passed four in favor; Mr. Andrade abstained.
The COA for King Philip Street/South Main Street open space subdivision plan was received. After discussion, the Board agreed to table the matter until the revised plan is submitted as requested. Matter tabled to next meeting.
6:14 p. m. - Roger's Way Extension: Attorney Matthew Costa and Attorney Steven Strojny appeared before the Board to discuss settlement of the pending litigation by amending Condition No. 13 on the Certificate of Action issued for Roger's Way Extension. Letter dated December 16, 2010 was received from Attorney David Gay. Attorney Costa, Gay & Gay, P. C., noted Attorney Gay's letter states the matter clearly.
Mr. Andrade noted the Board had previously discussed the matter at length and the plan was looked at extensively for months by the Planning Board and the Zoning Board, and he feels the Planning Board made a good decision in the matter. He noted the conditions in the COA are similar to other approved one-lot subdivisions. Mr. Andrade noted the Board is being asked to vote on changing Condition No. 13 by allowing the use of gravel instead of blacktop at Roger’s Way.
Mr. Fountain asked if the vote will be to amend the COA as requested in Attorney Gay's December 16, 2010 letter, and the Board agreed that was the request. Mr. Fountain moved to amend the Roger's Way Extension Certificate of Action as requested in Attorney David Gay's letter dated December 16, 2010; second by Mr. Ellis; motion passed on a vote of three in favor (Mr. Ellis, Mr. Gallagher, Mr. Driscoll) and two opposed (Mr. Andrade, Mr. Fountain). Amended Certificate of Action will be issued.
6:22 p. m. - Aspen Hollow subdivision: Developer Mark Perron appeared and requested a reduction in the Aspen Hollow surety bond. Mr. Andrade noted Mr. Perron previously assured the Board he would clean up the curbing and gravel issues at the site. Mr. Perron stated he personally took care of the issues and has talked to Highway Superintendent Roger Stolte about paving the road when the weather is warmer. Mr. Perron also assured the Board the old driveway off North Main Street will be removed.
Aspen Hollow Construction Cost Estimate (CCE), dated December 16, 2010, was received from Nitsch Engineering. Mr. Ellis moved to release the difference between the cash bond being held for Aspen Hollow and the amount established in the December 16, 2010 Nitsch CCE; second by Mr. Fountain; motion passed by unanimous vote.
6:28 p. m. - Mastria/Campbell Court (Ransom Woods) subdivision (located off Campbell Court/ Darrington Drive) public hearing was reconvened. Attorney Matthew Costa and Paul Pateneaude, P.E., were present. Attorney Costa addressed the Board regarding the question of legal access over Campbell Court. He submitted letter dated December 16, 2010 to the Board. Attorney Costa noted Campbell Court is nearly complete but it is not yet a public road. He discussed the issue of whether or not the Board can approve the proposed plan using a way that is not yet public. Attorney Costa noted he researched the matter and found the issue is whether or not adequate access is provided; not if the way is public. He stated Campbell Court provides adequate access even though it is not public.
Campbell Court Construction Cost Estimate, dated December 16, 2010, was received from Nitsch.
Mr. Ellis noted the Board wanted to know who owned the road. Mr. Gallagher cited a past case where it was decided that only the lots shown on a subdivision plan can be serviced by the road on the plan. Mr. Fountain noted he is comfortable that Frank Campbell owns Campbell Court and the question is does Campbell Court provide adequate access.
Mr. Gallagher noted in effect the plan is a retreat lot because construction of the road is being waived and retreat lots are typically 2 to 3 acres in size; Mr. Ellis thought they are usually 5 or more acres. Mr. Gallagher said the proposed back lot does not meet the standards and should be larger but the radius provided is okay.
Letter dated December 16, 2010 was received from the Raynham Fire Department regarding the proposed emergency turnaround. Mr. Pateneaude stated he can provide a turnaround on the plan if needed.
Rick Mastria, applicant's son, informed the Board he has spoken to John Noblin of King Philip Realty Trust, and he is okay with the proposed plan and agreed to work with applicant on the plan.
Mr. Andrade noted the proposed plan is different because the lots are being accessed off a non-public road. During discussion, it was noted there is one house built on Campbell Court but no bond has been posted on the road. The Board discussed the fact that Mr. Campbell would not be able to build further without posting a bond for Campbell Court but applicant wants to use Campbell Court frontage for his plan. Attorney Costa stated standards of adequacy should be considered.
Mr. Andrade stated the Board needs to know if a Form J was approved for Campbell Court house before they can approve the plan.
Attorney Costa noted that frontage on an approved way is deemed frontage for zoning purposes. Mr. Ellis noted that may be for two of the lots but not the retreat lot. Attorney Costa stated he still thinks Mr. Mastria has the right to access his parcel over Campbell Court. Mr. Gallagher disagreed because Mr. Mastria’s lots were not part of the Campbell Court subdivision application so there is no right to use the road.
Mr. Fountain stated he believes the applicant needs permission to use Campbell Court either by easement or recorded deed and Campbell Court cannot be built on until the road is finished or bonded. Mr. Gallagher noted he still has concerns with the rear lot. Mr. Andrade stated it may come to a vote to allow two or three lots.
Mr. Mastria told the Board he contributed money towards Campbell Court road for location of sewer stubs, noting the owners of Campbell Court were not at the meeting to object to the plan. He stated he previously did not understand the Board's concerns with the plan but he does now.
The public hearing was continued to January 6, 2011, 6:35 p.m. Time-to-act extension was signed.
6:58 p. m. - Berry Hill Adult Retirement Community (ARC): public hearing for modification of the special permit was reconvened. Board member Chris Gallagher left the meeting. Attorney Vincent N. Cragin, New Bedford, MA, and Frank Gallagher, P.E., Foxborough, MA (noted he is brother of Chris Gallagher), appeared before the Board. Also present were James Lively, Bridgewater Savings Bank (BSB); Peter Dello Russo, BSB; Edward F. Sousa, BSB; Ann M. Auger, Citizens-Union Savings Bank.
Letters dated December 8, 2010 and December 7, 2010 was received from Attorney Cragin; letter dated December 7, 2010 received from Frank J. Gallagher, P. E.
Attorney Cragin, representing Raynham Real Estate Holding Co., LLC, current owner of 36 lots in Berry Hill, explained they are now requesting to change the age restriction in Berry Hill ARC by allowing each home to have one resident over age 55 and one resident under age 55 whereas the special permit now requires both residents in all homes to be over age 55.
Mr. Fountain asked if the age restriction can be changed by the homeowners; Attorney Cragin noted that would not be in compliance with the special permit. He explained a letter was sent to Berry Hill residents surveying them on the age issue and at a subsequent homeowners' meeting, 82% of residents were in favor of the change in age restriction. It was noted there were homeowners and abutters to Berry Hill present tonight.
Mrs. Whalley noted she understood the by-law is less specific about both residents being over 55 than the Certificate of Action and the by-law references the federal fair housing act (FHA). She noted the Special Permit says both residents must be over age 55. During discussion, it was noted the fair housing act supersedes all in the matter. Attorney Cragin stated Berry Hill will continue to be marketed as an over-55 community while allowing the homes to be occupied by one person over 55 and one under 55. Attorney Cragin stated he would prefer to have the Town approve the change rather than providing a private covenant among homeowners.
Board members agreed they wanted to improve the situation for homeowners but they are responsible also to the Town and there needs to be a balance.
A resident of Berry Hill spoke and stated he preferred the community stay as is, with all over age 55. He noted five homes have been sold since March and asked what the argument for changing is.
Attorney Cragin noted 82% of current owners favor the change. He explained it is difficult selling properties at Berry Hill and if the age restriction is relaxed even a little it would help the situation. It was noted that five properties have been sold since March. Jim Lively, BSB, informed the Board three of the properties sold were foreclosures at lower prices. It was noted the properties today are selling at about $270,000.
Bill LaCivita, homeowner in Berry Hill noted he and a few others paid significantly more for their properties before the market crashed. He noted he bought his property as an ‘over-55’ development but he understands the market and is willing to allow adjustments to complete the project and keep the property values.
Mr. Ellis asked if studies have been done regarding the age restriction and sales. Marilyn Panagos, Remax broker, noted she has turned away couples with a small age difference of two to three years. After discussion, Mr. Ellis noted he could support 48 to 55 age restriction while restricting children from the ARC. Attorney Cragin stated they are staying with the spirit and intent of the by-law and special permit by having two occupants, not families.
Mr. Andrade asked if Town Counsel would be okay with this; Mrs. Whalley said she cannot say definitively. Attorney Cragin stated applicants would welcome any relief. Mr. Lively stated the banks would agree to 48 to 55 years age restriction. During discussion, it was noted that Bridgewater Savings Bank and Citizens Union Savings Bank comprise Raynham Real Estate Holding LLC.
Robert Beaton addressed the Board as a new resident of Berry Hill and said that allowing the proposed change to take place is good, and he is okay with allowing one resident under age 55 years and one over age 55.
Bill LaCivita spoke and noted the restriction on allowing only two people in the home is good and a third person should not be allowed.
Dan Larsen, Pleasant Street, spoke and noted the problem is not the age group but how the policy of only two people in the home can be enforced. He also noted the project has change the water table in the area.
Peter Dello Russo, BSB, stated enforcement is controlled by the homeowners’ association. Attorney Cragin noted FHA supports allowing two residents in the homes. Mr. LaCivita noted the association is effective and some one has already been evicted. Mr. Andrade noted that finishing the clubhouse and pool will bring people together and benefit enforcement issue. Mr. Dello Russo stated the bank is committed to finishing the club house.
Mr. Fountain requested a proposal be submitted to the Board in writing and approved by Town Counsel. Mr. Ellis agreed to the written proposal but felt there is no need for Town Counsel. Mr. Ellis noted the Board is giving their okay with the promise that the bank is finishing the project.
After discussion, it was agreed Attorney Cragin will draft a Certificate of Action (COA). Mr. Andrade stated he is willing to vote on the matter when the Board receives the COA. It was agreed the age restriction could be one resident 55 years or older and the other resident 45 years or older. Mr. Ellis noted the applicant need not attend the meeting if the wording on the COA is acceptable.
Mr. Dello Russo informed the Board the bank is committed to finishing the project as it is in their best interest. Mr. Andrade noted the Board believes they are committed but this is the Board’s time to get involved in the matter. Mr. Fountain agreed with Mr. Andrade.
The surety bond for Berry Hill was discussed; the total bond amount is approximately $515,000. Mr. Dello Russo stated that the bank will work with the Town to complete the road. During discussion, it was noted there is no guarantee on the bond, the bond company will determine the work to be completed and the Board may have to negotiate on the bond. A resident asked if the homeowners will have input on the bond matter, and the Board said no. It was noted the approved plan includes curbing and trees but the pool and clubhouse are not covered.
After discussion, Mr. Ellis moved that the Raynham Planning Board call the two bonds issued by Bond Safety Insurance Company, #5016209, for $129,355, and #5016219 for $385,747, as the Board finds Berry Hill Realty Trust, Charles M. Mirrione, Trustee, 417 Purchase St., Easton, MA, in default of completion of Berry Hill Estates located at Pine and Pleasant Streets, Raynham, MA. The Board finds that Berry Hill Realty Trust, Charles M. Mirrione, Trustee, has not timely completed the subdivision in accordance with the special permit and conditions of approval specified in the Certificate of Action for Berry Hill Estates, Adult Retirement Community, which was dated December 28, 2004 and file with Raynham Town Clerk on January 5, 2005; therefore, in accordance with the 2003 Raynham Planning Board Rules and Regulations
Governing the Subdivision of Land In Raynham, MA, Section 6.4, Failure to Perform, the Board votes to enforce the performance bond to complete the construction of Berry Hill Estates; second by Mr. Fountain; motion passed four in favor (Mr. Gallagher not at the hearing).
Mrs. Whalley noted changes were made to the approved plan. Attorney Cragin stated the changes were not made to common areas. Frank Gallagher, P. E., stated he prepared the modified subdivision plan and asked that the changes be considered a minor modification. He explained the changes: elimination of all common driveways, with no change in lot lines; down sizing of homes, noting that smaller houses were not specifically approved; and, elimination of roof drains, which may or may not be in the Board's jurisdiction but is being disclosed. Mr. Fountain noted if the lot coverage is being decreased, that is okay.
Builder Donald Brown and Frank Gallagher discussed the smaller house sizes proposed, noting the size on some houses could be decreased from 2,350 to 1,200 square feet. Board members noted that could affect property values. Mr. Brown explained that only some smaller lots will have smaller houses while the larger lots will be kept for the larger houses. Board members discussed whether or not the house size was within their jurisdiction. Mr. Fountain noted he was okay with 20% of the houses being smaller.
After discussion, the Board agreed the elimination of the common driveways is a minor modification to the plan. It was noted the elimination of roof drains is being done because of a water table issue.
Mr. Dello Russo noted the average house size will now be 1,500 to 1,700 square feet. He noted a more sellable product is needed. Board members stated they would like to see a house plan. Mr. Brown stated that with an attached garage included, the smaller houses look similar to the others.
Board members agreed a vote is not needed on the house sizes. It was agreed the plan modification is being proposed for common driveways on Lots 8, 9, 13, 14, 15, 16, 17, 20 21, 31 and 32. The common driveways were discussed. It was noted they were approved in order to accommodate houses and garages on some narrow and deep lots.
The Board agreed drainage is an issue so John Schmid should review the modified plan for that reason. They agreed they would consider the plan changes a minor modification if there is no effect on drainage. Edward Souza, BSB/RREH, LLC, stated they have the calcs. The plan will be forwarded to John Schmid.
The public hearing was continued to January 6, 2011, 6:40 p. m. Attorney Cragin agreed to draft Certificates of Action for minor modification to the plan with each lot being referenced and an amended special permit.
There were no other comments from those present.
There was no further business and the meeting adjourned at 8:20 p. m.
Respectfully submitted,
Christopher J. Gallagher, Clerk
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