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Raynham, Massachusetts.  Incorporated 1731

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Planning Board minutes February 2, 2012
The Raynham Planning Board held a meeting on Thursday, February 2, 2012, at Raynham Veterans' Memorial Town Hall. The meeting was opened at 6:05 p.m. by Chairman Daniel Andrade.

Board members present: Daniel Andrade, Burke Fountain, Christopher Gallagher, Russell Driscoll, Henry Ellis

Staff present: Town Planner Marilyn Whalley, Administrative Assistant Maureen McKenney

6:05 p.m. - Tearall Road plan – Dr. Molineaux Matthews, appeared before the Board to discuss two lots he owns on Tearall Road, shown as Lot 8 and Lot 9 on a Form A plan approved in 1972. Dr. Matthews explained that he was advised by the building department that he would need variances on the lots because they lacked frontage on a public way. Dr. Matthews questioned if the lots were grandfathered by the Form A plan.

Mr. Gallagher explained that a Form A plan holds a use for three years but does not hold zoning dimensional requirements. He noted the main concern of a Form A plan is whether or not access to a property is adequate.

After discussion, Board members agreed variances will be needed because of the frontage issue and a waiver-of-frontage plan must be submitted to the Planning Board if frontage variances are granted by the Board of Appeals.

The condition of Tearall Road was discussed. It was noted the road is paved in front of Dr. Matthews property although it is only the approximate width of a driveway. The Board explained they would be considering road improvements to this section of Tearall Road, such as drainage, adequate access for emergency vehicles, etc., and they will require a street sign for Tearall Road.  No action taken.

6:20 p.m. - Awais Farms public hearing: Nyles Zager, P.E., Outback Engineering, appeared before the Board on behalf of applicant. Letter dated January 19, 2012 was received from Town Counsel Marc Antine. Mr. Andrade noted Attorney Antine advised the Board has 135 days in which to act on the plan. Mr. Ellis noted Mr. Driscoll provided the Board with copies of the easements in question. Project review correspondence dated January 26, 2012 was received from Nitsch Engineering.  Copy of letter dated December 27, 2011 to Wayne MacCallum of Natural Heritage and Endangered Species from neighboring residents was received.

Mr. Zager explained a revised plan was submitted in response to the Nitsch review letter. He noted the major change was adding a 200 foot guardrail on both sides of Awais Farm Road and along Lot 2, and a cul-de-sac detail was added to Sheet 3 of the plan.

The issue of wildlife habitat was discussed. Mr. Zager said he believed he provided the Board with documentation from Natural Heritage confirming they approved the project but he will provide a copy of the correspondence if necessary.

Mr. Zager discussed the catch basins, noting flared ends are being provided. During discussion it was noted the waivers requested on the plan are the ones allowed by the Certificate of Action and the denied waivers were removed. It was noted all sidewalks are being provided.  Mr. Zager stated that Nitsch Engineering had no issues with the drainage provided.

Mr. Gallagher discussed the roadway construction easements, noting they do not allow changes on the property. He noted the Nitsch correspondence commented on the easements. Mr. Fountain asked if construction according to the plan will permanently change the grade of the property involved. Mr. Zager stated it will.

Mr. Fountain discussed the history of the property, noting he found no mention of reservation of easements in a 1976 deed from Max Maibor, and no mention of conveying of easements in a subsequent deed. He noted the deed to the front street lots was subject to roadway construction easements but there was no mention of slopes and gradings.

Joseph Cardoso, 42 Bridge Street, addressed the Board. He stated he has researched the matter and agrees with Mr. Fountain and Mr. Gallagher that the easements are temporary.

Elizabeth Tipping, 155 Bridge Street, addressed the Board and asked why the Board of Appeals variance decision was not in effect. Mr. Andrade explained the Board received an opinion from Town Counsel on that matter.  Mrs. Tipping suggested a second opinion be sought.

Attorney Paul Adams appeared on behalf of applicants. He informed the Board he has full title reports on applicant's property showing the easements. Mr. Fountain discussed the 1976 sale from Max Maibor. He asked Attorney Adams if he felt the back lots retained easements; Attorney Adams said he did and he discussed the history of the property, citing several recordings on file at the registry. He noted there is no instrument releasing or discharging the easements. He stated the purpose of the 25 foot easement is to construct and maintain a roadway to the back land, and failure to mention easements does not release or discharge encumbrance of easements.

Mr. Fountain continued citing recordings of deeds, noting there is no mention of easements. He noted the back land was sold in 1978 and he asked Attorney Adams if there was mention of easement in that sale. Attorney Adams stated there does not need to be as the easements go with the land.

Mr. Andrade discussed the issue of the 1978 variance, questioning for how long the 1976 construction easements were good.  Attorney Adams noted when the house on the property burned there was no longer a use for the variance. He stated that theoretically easements can be temporary but generally they are permanent until released by different means.  He noted the abutters could petition a court regarding the validity of the easement but until that time the easement is of record and valid and cannot be built upon by the abutters.

Mr. Zager noted he thought the easements were in place all along and they were removed from the plan when informed otherwise. Attorney Adams stated there may have been a miscommunication with a prior attorney’s office on the matter.

Mr. Gallagher noted the wording on the easement, and he questioned how the applicant has the right to alter topography if the rights terminate. He questioned if a piggy back easement for slopes was needed. He questioned what would stop property owners from changing their land grade back to its original state once the road was constructed. Attorney Adams discussed that that would be trespassing on the easement and subject to suit and damages if the road was altered. Mr. Fountain agreed that may be the case during construction but not afterwards. Attorney Adams noted the principal of law says the road cannot be destroyed or adversely affected.  Mr. Andrade discussed that the Board would have to consider the matter of the easements if the road is to become a town road.

Mr. Fountain stated he is concerned that the roadway construction easement is only good for construction and the easement language on the plan leads him to believe the easement is temporary and not permanent easement affecting the grades and slopes of property forever.

Ms. Whalley questioned if the real thought of the easement was not for a road but rather it might have been for construction vehicles with the idea being not to alter the property to a drastic degree, and the neighbors may have a complaint to compensate if slopes are changed.

Mr. Andrade noted the Board has in front of them now a plan with the denied waivers addressed, the Nitsch Engineering information addressed, the soil test information as per the Certificate of Action, and the original conditions other than denial still in effect. He noted that proof has been provided that the easements exist but there is a discrepancy as to what the easements can be used for, and he feels they are for construction of the road but does not think the property can be graded.

Attorney Adams discussed that he does not believe the Board has standing to raise objection about the easements because it is a private property dispute. Mr. Andrade said he appreciates that it is private property but it is the Planning Board’s job to make sure an applicant has the right to use.  After discussion, Attorney Adams requested the Board seek an opinion from Town Counsel on the matter, noting he has not identified a factual basis allowing the easements to be eliminated.

Mr. Fountain questioned if the roadway grade along Lots 15 & 16 is remaining the same. Mr. Zager stated yes, it will be fairly flat. Mr. Fountain asked if the sloped land will create water problems. Mr. Zager stated no and explained the water will be discharged to a closed system.

Mr. Gallagher explained how the drainage system will work; he agreed it will not make the situation worse and may make it better. During discussion, it was noted three trees inside the easement will be cut.
Ms. Whalley asked about comment No. 19 in the Nitsch letter. She asked if an Operation & Maintenance plan will be in place. Mr. Zager stated yes, for the majority of the plan, and that information will be provided prior to construction.

Ms. Whalley asked Mr. Zager to resend the Natural Heritage information; Mr. Zager said he will.

After discussion, it was agreed Mr. Fountain will contact Town Counsel for his opinion on the status of the easements, the need for slope easement and if a drainage structure is allowed in the easement. Attorney Adams said the issue is whether or not the easement allows the road to be constructed per the plan.

The Awais Farms public hearing was continued to March 1, 2012, 6:20 p.m.

7:46 p. m. - General Business: Mr. Fountain moved to waive the reading and approve the minutes as submitted for October 12, 2011 and January 19, 2012; second by Mr. Ellis; motion passed by unanimous vote.

SRPEDD Technical Assistance Form was received. It was agreed Ms. Whalley will contact the police and fire departments to determine if they are aware that technical assistance for 911 system is available. Ms. Whalley reminded the Board that they had previously discussed using the Board's annual allotment of SRPEDD technical assistance on stormwater permitting regulations.

Town Planner update: Ms. Whalley informed that the Kings Estates road asphalt is done. E-mail dated February 1, 2012 was received from Roger Stolte regarding the mailboxes at King Estates being located in the street. Ms. Whalley noted the work to relocate the mailboxes is not covered by the insurance bond. No action was taken on the matter.

Ms. Whalley informed that the requested Berry Hill information has been sent to the bond insurance company.  Mr. Gallagher requested that the sewer and water departments be kept in the loop during the road construction process at Berry Hill. Ms. Whalley recommended that the water, sewer and highway departments be very specific during the construction process. Mr. Gallagher asked to be included in memos on the matter. Mr. Andrade noted that only what is on the approved plan is what can be done.

The status of the directional signage at the Rockland Trust site was discussed.  It was questioned whether or not tickets can be issued for illegal turns out of the site since it is on a state highway.    

Mr. Andrade informed the Board that Dalton Gorden of the Cemetery Commission had contacted him on the matter of a cemetery that is located in Carriage Hill, Phase II. The cemetery exists but is not shown on the Phase II plan and Mr. Gorden questioned what could be done to correct the situation and he asked if an easement can be granted to the Cemetery Commission to maintain the cemetery.

Mr. Gallagher noted the cemetery is shown on the Phase I plan. After discussion, it was agreed that a letter will be sent to Norwood Bank, present owner of Carriage Hill Estates, Phase II, advising them that the cemetery is not shown on the Phase II plan and that the Cemetery Commissions would like an easement to maintain the site.

After discussion, the second February meeting was cancelled as there may not be a quorum.

There was no further business and the meeting adjourned at 8:12 p.m.
Christopher J. Gallagher, Clerk

Town of Raynham 558 South Main St., Raynham, MA 02767
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